Plaintiffs' Response to Defendants' Motion to Dismiss

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JAMES R. BLACKSTON )

BRADLEY W. BARBER, )

)

Plaintiffs, )

)

v. ) CIVIL ACTION NO. 2:04cv348-MHT-CSC

)

STATE OF ALABAMA, et al., )

)

Defendants. )

PLAINTIFFS RESPONSE AND BRIEF IN RESPONSE TO

DEFENDANTS MOTION TO DISMISS and

MOTION TO STAY DISCOVERY

Come now James Blackston and Bradley Barber and submits the following brief in support of the Plaintiffs Response to Defendants Motion to Dismiss and state as follows:

Defendants State of Alabama, et.al., seek to have the plaintiffs Verified Complaint dismissed under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

FACTUAL BACKGROUND

This controversy spans eleven years, involving three separate federal lawsuits, a decision by the Eleventh Circuit Court of Appeals and culminating in two separate Settlement Agreements and a federal court order.

The numerous defendants in this case have refused, sometimes maliciously and in bad faith, to abide by the U.S. Constitution, federal law, Alabama state law, the Eleventh Circuit s mandate in Blackston v. Alabama, 30 F.3d 117 (11^th Cir. 1994), two Settlement Agreements and an ORDER AND FINAL JUDGEMENT of this Honorable Court.

The Plaintiffs and the State of Alabama, et al., entered into a RELEASE AND SETTLEMENT AGREEMENT (the 1995 Agreement) on or about 15 December 1995. (Doc. #1, Exhibit A)

To settle Case #2:99cv295-A, the Plaintiffs and the State of Alabama, et al., entered into a SETTLEMENT AGREEMENT AND RELEASE (the 2003 Agreement) on or about 5 December 2003. (Doc. #1, Exhibit B)

This Honorable Court entered an ORDER AND FINAL JUDGMENT in Case #2:99cv295-A, on 24 December 2003. (Doc. #1, Exhibit C)

The Plaintiffs filed a Verified Complaint on 12 April 2004, due to the herein named Defendants numerous alleged violations of the 1995 and the 2003 Agreement. (Doc. #1)

One month later, on 11 May 2004, one of the defendants, i.e. Defendant Maddox filed a MOTION FOR SANCTIONS AGAINST THE PLAINTIFFS FOR VIOLATION OF THE 2003 SETTLEMENT AGREEMENT AND RELEASE. (See Case # 2:99cv295-A, Doc. #213)

On 24 May 2004, the Court refused to take jurisdiction of Defendant Maddox s MOTION FOR SANCTIONS. (See Case # 2:99cv295-A, Doc. #216)

The Defendants filed a MOTION TO DISMISS, (Doc. #23,) and an accompanying BRIEF IN SUPPORT OF MOTION TO DISMISS, (Doc. #24,) on 23 June 2004.

The Defendants filed a MOTION TO STAY DISCOVERY AND REQUEST FOR STATUS CONFERENCE, (Doc. #25) on 23 June 2004.

STANDARDS OF REVIEW

For the purposes of this suit, the Court must accept the truth of Plaintiff's factual allegations. See Blackston v. State of Ala., 30 F.3d 117, 120 (11th Cir.1994).

With respect to a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Eleventh Circuit has held:

Attacks on subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) come in two forms. Facial attacks on the complaint require[] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S. Ct. 358, 66 L. Ed. 2d 217 (1980) (citing Mortensen v. First Fed. Sav. & Loan Ass n, 549 F.2d 884, 891 (3d Cir. 1977)).

Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered. Id. Lawrence v. Dunbar, 919 F.2d 1525, 1528 29 (11th Cir. 1990).

In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), the Eleventh Circuit has held:

The purpose of a Rule 12(b)(6) motion is to test the facial sufficiency of the statement of claim for relief. It is read alongside Fed.R.Civ.P. 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." The rule is not designed to strike inartistic pleadings or to provide a more definite statement to answer an apparent ambiguity, and the analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and attachments thereto. See 5 Charles A. Wright & Arthur Miller, Federal Practice and Procedure § 1356 at 590-92 (1969) (Wright & Miller).

For the purposes of the motion to dismiss, the complaint must be construed in a light most favorable to the plaintiff and the factual allegations taken as true. See SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.), reh'g denied, 840 F.2d 25, cert. denied, 486 U.S. 1055, 108 S. Ct. 2822, 100 L. Ed. 2d 923 (1988). Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1368-69 (11^th Cir 1997)

The Eleventh Circuit has held:

The Supreme Court has stated that the "accepted rule" for appraising the sufficiency of a complaint is "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Tiftarea Shopper, Inc. v. Georgia Shopper, Inc., 786 F.2d 1115, 1117-18 (11th Cir.1986) (quoting Conley). Blackston v. Alabama, 30 F.3d 117, 120 (11^th Cir. 1994).

Id. A complaint may not be dismissed because the plaintiff's claims do not support the legal theory he relies upon since the court must determine if the allegations provide for relief on any possible theory. Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967). We hasten to add that this motion is viewed with disfavor and rarely granted. See e.g., Madison v. Purdy, 410 F.2d 99, 100 (5th Cir.1969); International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 400 F.2d 465, 471 (5th Cir.1968) ("Dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate."). The pleadings must show, in short, that the Plaintiffs have no claim, before the 12(b)(6) motion may be granted. Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1368-69 (11^th Cir 1997)

ARGUMENT

DISTRICT COURT S JURISDICTION

The constitutional power for federal jurisdiction is found in Article III, Section 2, which provides that federal courts shall have jurisdiction over federal questions. Federal jurisdictional statutory authority may be found in 28 U.S.C. Sections 1331, which authorizes district court original jurisdiction over constitutional and federal questions.

1. Jurisdiction under the Contempt Powers of the Court - Claim I

Precedent dictates that a plaintiff seeking to obtain the defendant's compliance with the provisions of a court order move the court to issue an order requiring the defendant to show cause why he should not be held in contempt and sanctioned for his noncompliance. See Newman v. State of Alabama, 683 F.2d 1312, 1318 (11th Cir. 1982), cert. denied, 460 U.S. 1083, 103 S. Ct. 1773, 76L. Ed. 2d 346 (1983)

One sanction might be to incarcerate . . . the defendant[ ] . . . . While a federal court is always reluctant to coerce compliance with its decrees by incarcerating a state official, if that official is in contempt there can be no doubt of the court's authority to do so. State officials are not above the law.

Another sanction might be to fine the recalcitrant official. "Civil contempt may . . . be punished by a remedial fine, which compensates the party who won the injunction for the effects of his opponent's noncompliance . . . . If [a state official] refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance." [ Hutto v. Finney, 437 U.S. 678, 691, 98 S. Ct. 2565, 2573, 57 L. Ed. 2d 522 (1978).] Newman, 683 F.2d at 1318 (citation omitted). Wyatt v. Fetner, 92 F.3d 1074, 1082 n.8 (11th Cir. 1996)

The Plaintiffs seek an order to show cause, from the court that entered the ORDER AND FINAL JUDGMENT, dated 24 December 2003 and that retained jurisdiction over it, why the defendants should not be held in civil and criminal contempt for violations of the ORDER AND FINAL JUDGMENT. (See Verified Complaint, Doc. #1, p.70, ¶1).

This Honorable Court has jurisdiction to enforce the 1995 and the 2003 Agreement and should deny the Defendants MOTION TO DISMISS, under F.R.C.P., Rule 12(b)(1) and 12(b)(6).

2. Jurisdiction under Contract Enforcement - Claim II

The U. S. Supreme Court put the issue of contract enforcement to rest in Frew v. Hawkins, 540 U.S. ___, January 14, 2004 (Slip Opinion) No.02-628, stating, that the Eleventh Amendment does not bar enforcement of consent decrees. Frew, Supra, (slip opinion), P7, ¶1. (See detailed analysis of Eleventh Amendment Immunity later in this brief.)

Section 34-3-21, Ala. Code 1975, governs the validity and enforcement of settlement agreements reached between parties at the trial-court level. Ex parte Sims, 627 So. 2d 380 (Ala. 1993). Section 34-3-21, Ala. Code 1975, provides: "An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court." A settlement agreement entered into between the parties is binding and will be summarily enforced. Contractor Success Group, Inc. v. Service Thrust Organization, Inc., 681 So. 2d 212 (Ala. Civ. App. 1996).

Moreover, as noted by the Honorable Ira DeMent, United States district judge, in Spurlock v. Pioneer Financial Services, Inc., 808 F. Supp. 782 (M.D. Ala. 1992), this Court has, on several occasions, reviewed the validity of settlement agreements reached in the trial court and has on those occasions applied the provisions of Ala. Code 1975, § 34-3-21, without mentioning Rule 47. See Spurlock, 808 F. Supp. at 783, citing Beverly v. Chandler, 564 So. 2d 922, 923 (Ala. 1990); King v. Travelers Ins. Co., 513 So. 2d 1023, 1026 (Ala. 1987); Reeves v. Orkin Exterminating Co., 457 So. 2d 402, 404 (Ala. 1984).

3. Jurisdiction under the Due Process Clause - Claim IV

Class based Discrimination

The Plaintiffs have sufficiently established a claim for violation of equal protection under Supreme Court precedent Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)(noting that successful equal protection claims can be brought where a plaintiff has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.)

To properly plead an equal protection claim, under Village the plaintiffs need only allege that through state action, similarly situated persons have been treated disparately and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

This Honorable Court has original jurisdiction to enforce the 1995 and the 2003 Agreement and original jurisdiction under 28 U.S.C. §1331 to hear fourteenth amendment claims and should deny the Defendants MOTION TO DISMISS, under F.R.C.P., Rule 12(b)(1) and 12(b)(6).

A Class-based distinction to confer jurisdiction is not necessary under Village, Supra. The Plaintiffs have stated a valid fourteenth amendment, due process, equal protection, equal access and equal treatment claim.

4. Supplemental Jurisdiction of State Law Claims - V and VI

Federal courts have original jurisdiction of all civil actions that arise under the Constitution or laws of the United States. 28 U.S.C. § 1331. Such federal-question jurisdiction may be based on a civil action alleging a violation of the Constitution, . . City of Huntsville v. City of Madison, 24 F.3d 169, 171-72 (11th Cir.1994). Id. at 173-74 (analyzing the relevant Supreme Court cases, including Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986)). Jairath v. Dyar, 154 F.3d 1280, 1281-82 (11th Cir. 1998)

As originally filed, jurisdiction in this case was validly exercised as to all claims against all parties. First, the Plaintiffs asserted constitutional violations claims under the first and fourteenth amendment of the U.S. Constitution. Next the Plaintiffs asserted valid federal question claims arising under federal law. The aforementioned 1995 and 2003 Settlement Agreements were entered to settle claims arising under the first and fourteenth amendment and federal law and Alabama state laws.

The state law claims by the Plaintiffs were appropriate under traditional supplemental jurisdiction as supplemental claims. Section 1367 codifies the concepts previously known as pendent and ancillary jurisdiction. Prior to this statute, the primary source of guidance for the exercise of pendent claim jurisdiction was United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Gibbs divided the analysis into two sections: the power of a federal court to exercise pendent claim jurisdiction, and its discretion not to do so despite having the power. Id. at 725-26, 86 S. Ct. at 1138-39.

Section 1367 retains the same dichotomy, though its scope is somewhat different than the Gibbs tests. Under section 1367(a), unless section 1367(b) or c) applies, the district court " shall have " supplemental jurisdiction over both additional claims and additional parties when those claims "are so related to claims in the action within [the] original jurisdiction [of the court] that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). Section 1367(c), however, allows a federal court to exercise some discretion in refusing to hear a case otherwise within its supplemental jurisdiction.

In this case, original jurisdiction was initially based on the first and fourteenth amendment and two (2) Settlement Agreements and a federal court order. The 2003 Settlement Agreement and Release entered into by plaintiffs Blackston and Barber constitutes a valid, final judgment on the merits of the 1999 lawsuit. This Court entered its Order and Final Judgment and incorporated the 2003 Settlement Agreement. (See ORDER AND FINAL JUDGMENT, Doc. #1, Exhibit C.)

These new claims arise from new violations of the 1995 Agreement and the 2003 Agreement, and the first and fourteenth amendment and 42 U.S.C. §667 and 45 C.F.R. §302.56. The Plaintiffs' state law claims against the Defendants are certainly part of the same case or controversy. The Plaintiffs' state-law claims all arise from the same events as the constitutional claims and federal law claims. They will involve the same witnesses, presentation of the same evidence, and determination of the same, or very similar, facts. Accordingly, it is within the power of the district court to exercise supplemental jurisdiction over the state-law claims of the Plaintiffs. Palmer v. Hospital Auth. of Randolph Cty. 22 F.3d 1559, 1562-64 (11th Cir. 1994)

5. Forum-selection Clause of 1995 and 2003 Agreements

The Settlement Agreements in question here, state that the SETTLEMENT AGREEMENT AND RELEASE is enforceable as a contract. A violation of the agreement may be used as grounds for a breach of contract suit in Federal or state court. Both the 1995 and the 2003 Agreement have identical language as quoted above. In short, the Agreement creates "a mandatory, enforceable obligation. (See Verified Complaint, Doc. #1, Exhibit A, p.6, ¶9 and Exhibit B, p7, ¶10.)

In any event, the Eleventh Circuit has shown, the forum-selection provision in this case gives the Plaintiffs an absolute right to choose the forum. The contract may be considered "permissive" in that it specifically allows Plaintiffs to select the Alabama state courts, the federal district court for the Middle District of Alabama, or any other appropriate jurisdiction. The contract is "mandatory" as to the Defendants, however, because it requires an absolute submission by them to the jurisdiction of whichever of these fora that the Plaintiffs chooses. Snapper, Inc. v. Redan, 171 F.3d 1249, note 24,¶4 (11th Cir. 1999)

In addition to the Defendants overall shotgun assertion that the Court lacks jurisdiction over any of the Plaintiffs claims, the Defendants argue that Count I of the Plaintiffs Verified Complaint should be dismissed because a contempt petition is part of the original case, not a new case. (Defendants brief, p2, §I) Although the Defendants have not filed for dismissal based on Rule 12(b)(3), the Defendants seem to argue improper venue. Nevertheless, the Eleventh Circuit gave the following analysis to further explain the significance of forum-selection clauses within Settlement Agreements and Contracts.

Motions to dismiss based upon forum-selection clauses ordinarily are not properly brought pursuant to Rule 12(b)(1), which permits motions to dismiss for lack of subject matter jurisdiction, because the basis upon which the defendants seek dismissal--namely, that the agreement of the parties prohibits the plaintiff from bringing suit in the particular forum--is unrelated to the actual basis of federal subject matter jurisdiction--namely, federal question jurisdiction or diversity of citizenship, as the case may be. In the case before us, appellants stated claims under the U.S. Constitution, a sufficient basis for federal subject matter jurisdiction that is not affected by the parties' agreement to litigate in federal or state court. See, e.g., Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946); Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352 (11th Cir.1998) (noting that under Bell, "a federal court may dismiss a federal question claim for lack of subject matter jurisdiction only if: (1) "the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction'; or (2) "such a claim is wholly insubstantial and frivolous' ") (quoting Bell, 327 U.S. at 682-83, 66 S. Ct. at 776) (emphasis omitted); Central Contracting Co. v. Maryland Cas. Co., 367 F.2d 341, 345 (3d Cir.1966) (stating that a forum-selection clause "does not oust the jurisdiction of the courts; in effect it merely constitutes a stipulation in which the parties join in asking the court to give effect to their agreement. . . .") (emphasis added.) Instead, we hold that motions to dismiss upon the basis of choice-of-forum and choice-of-law clauses are properly brought pursuant to Federal Rule of Civil Procedure 12(b)(3) as motions to dismiss for improper venue. Lipcon v. Underwriters at LLoyd's, London, 148 F.3d 1285, 1290 (11th Cir. 1998)

Simple reasoning and fairness of the judicial process demands that a stipulation asking the Court to take jurisdiction is just as binding on all parties as the stipulation requesting the Court to decline jurisdiction. The stipulation in the present case allows either party to request the court to take jurisdiction and as in the present case the Defendants will NOT complain about the jurisdiction or venue chosen by the Plaintiffs.

In the event the forum-selection clauses, ¶9 of the 1995 Agreement and ¶10 of the 2003 Agreement, are declared unlawful and unenforceable, the Plaintiffs respectfully request permission to amend their Verified Complaint to include a claim for FRAUDULENT INDUCEMENT. The Plaintiffs relied heavily upon the above forum-selection clauses to protect their rights under the 1995 and 2003 Agreements and the forum-selection clause was a main ingredient enticing the Plaintiffs to enter into the Settlement Agreements.

6. All Writs Act

The All Writs Act, 28 U.S.C. § 1651, furnishes an alternative basis for federal jurisdiction over this case. The All Writs Act provides that "the Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions." 28 U.S.C. § 1651(a). The Supreme Court "has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." United States v. New York Tel. Co., 434 U.S. 159, 172, 98 S. Ct. 364, 372, 54 L. Ed. 2d 376 (1977). De Perez v. AT&T Co. 139 F.3d 1368, 1378-79 (11th Cir. 1998)

I. CLAIM I - CONTEMPT OF COURT or MOTION TO ENFORCE SETTLEMENT AGREEMENTS

The Defendants assert that Claim I of the Plaintiffs Verified Complaint should be dismissed because a contempt petition is part of the original case, not a new case. (Defendants brief, Doc. #24, p2, §I.) Claim I of Plaintiffs Complaint alleges a claim for contempt against Defendants for violations of the 1995 and the 2003 Settlement Agreement. Whether Claim I should be entitled as a contempt petition or a motion to enforce is a mere technical flaw. (footnote 1 Regardless how Claim I is entitled, the facts averred in Claim I serve to fairly apprise the Defendants of wrong doing and a fair chance to respond.

The complaint is sufficient to withstand a Rule 12(b)(1) and a Rule 12(b)(6) motion. As is required under Fed.R.Civ.P. 8(a), the complaint contains a short and plain statement of the facts upon which the claims against these defendants are based sufficient to allege violation of a clearly established constitutional right. Kyle v. Chapman, 208 F.3d 940, 943-44, (11th Cir. 2000)

The sufficiency of a complaint is measured by Fed.R.Civ.P. 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has emphasized that the Federal Rules "do not require a claimant to set out in detail the facts upon which he bases his claim." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) (quotations and citations omitted). Our Circuit, interpreting the Federal Rules, has repeatedly stated that "a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Banco Continental v. Curtiss Nat'l Bank of Miami Springs, 406 F.2d 510, 514 (5th Cir.1969) (quotations, citations, and footnote omitted);11 see also Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 998 (11th Cir.1983) (collecting cases). The complaint, in substantial compliance with [Rule 8(a) ] was good against the motion to dismiss." Augusta Broadcasting Co. v. United States, 170 F.2d 199, 200 (5th Cir.1948) (footnote omitted). Canadyne-Georgia Corp. v. Nationsbank, 183 F.3d 1269, 1275-76 (11th Cir. 1999)

A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds. Fed.R.Civ.P., Rule 8(e)(2).

("The form of the complaint is not significant if it alleges facts upon which relief can be granted, even if it fails to categorize correctly the legal theory giving rise to the claim."). We conclude that Appellant's Complaint satisfies these liberal standards. Evans v. Mcclain of Georgia, Inc. 131 F.3d 957, n2 (11th Cir. 1997)

Rule 1 of the Federal Rules of Civil Procedure requires all pleading to be construed and administered to secure the just, speedy, and inexpensive determination of every action. The plaintiffs were exercising their rights and obligations in conformity with Rule 1 of the Federal Rules of Civil Procedure, by including the CONTEMPT PETITION or MOTION FOR CONTEMPT within the new and additional claims acquired subsequent to signing the 2003 Agreement.

The Court should refuse to condone the manifest injustice that would result if the Court were to prevent the Plaintiffs from vindicating their rights under the 1995 Agreement and the 2003 Agreement, in which there is no prejudice to the other side. A different result would harken back to the days of exceedingly technical pleading requirements, when a plaintiff who chose the wrong form of action lost his case no matter how meritorious it was. See Sembawang Shipyard, Ltd. v. Charger, Inc. 955 F.2d 983 (5th Cir. 1992).

The rational is to avoid contravention of Fed.R.Civ.P. 8(e)(1), 8(e)(2) and 8(f) by requiring excessively technical pleading requirements.

A complaint may not be dismissed because the plaintiff's claims do not support the legal theory he relies upon since the court must determine if the allegations provide for relief on any possible theory. Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967). (footnote 2 )We hasten to add that this motion is viewed with disfavor and rarely granted. See e.g., Madison v. Purdy, 410 F.2d 99, 100 (5th Cir.1969); International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 400 F.2d 465, 471 (5th Cir.1968) ("Dismissal of a claim on the basis of bare-bone pleadings is a precarious disposition with a high mortality rate."). The pleadings must show, in short, that the Plaintiffs have no claim, before the 12(b)(6) motion may be granted. Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1368-69 (11^th Cir 1997)

In general, the law of contracts governs the construction and enforcement of settlement agreements. Blum v. Morgan Guaranty Trust Co. of New York, 709 F.2d 1463 (11th Cir. 1983). Hayes v. National Serv. Indus., 196 F.3d 1252, 1254 (11th Cir. 1999)

A district court has inherent power to recognize, encourage, and when necessary enforce settlement agreements reached by the parties. Lyles v. Commercial Lovelace Motor Freight, Inc., 684 F.2d 501, 504 (7th Cir.1982) ("Where a party has knowingly and voluntarily agreed to settle his claims and no change of circumstances warrants repudiation of the agreement, the courts will enforce the settlement agreement."); Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir.)2 ("It is well established that courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them."), cert. denied, 429 U.S. 862, 97 S. Ct. 165, 50 L. Ed. 2d 140 (1976); CIA Anon Venezolana de Navegacion v. Harris, 374 F.2d 33, 35-36 (5th Cir.1967) emphasis added ("Federal courts have held under a great variety of circumstances that a settlement agreement once entered into cannot be repudiated by either party and will be summarily enforced. . . ..").

The case before the Court involves a situation wherein a settlement was finalized by an ORDER AND FINAL JUDGMENT. The parties agreed (1) that the disputed issues had been resolved; and (2) that the case as it then stood would be dismissed upon the payment to the plaintiff of a specific sum of money. The Defendants admit the 2003 Settlement Agreement should be treated as a contract. (Defendants brief, Doc. #24, p.5, ¶2) There is no reason offered by the Defendants why the parties should not be bound by their agreement under basic contract principles. (footnote 3 )

II. CLAIM II - BREECH OF CONTRACT

In the Verified Complaint, Claim II, the Plaintiffs assert the intentional interference with contractual relations, breech of contract and impairing the obligation of contracts. Also within the Breech of Contract Claim, the plaintiffs allege that the defendants exhibited substantial evidence of bad faith and fraud in failing to perform the obligations of the 1995 Agreement and the 2003 Agreement. (See Verified Complaint, Doc. #1, pp.24-37.)

The Defendants failed to address the Plaintiffs bad faith and fraud claims within Claim II, deliberately seeking to sidestep an important issue is this case. Every contract contains an implied in law covenant of good faith and fair dealing, this covenant provides that neither party will interfere with the rights of the other to receive the benefits of the agreement. Breach of the covenant provides the injured party with a tort action for

bad faith notwithstanding that the acts complained of may also constitute a breach of contract. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, cc (S.Ct. 1999).

The defendants argue dismissal of Claim I and Claim II for failure to state a claim upon which relief can be granted under Rule 12(b)(6) because Plaintiffs systematically misinterpret the 2003 Settlement Agreement, effectively attempting to rewrite it. (See Defendants Brief in Support of Motion to Dismiss, Doc. #24, p.3, ¶3 and p.6, ¶1.) The Defendants also argue dismissal of Claim II on the grounds of Eleventh Amendment Immunity. (Doc. #24, p5, ¶2).

The Defendants argue that this Court lacks jurisdiction over Plaintiffs state-law contractual claims. The Defendants argue that this Court lacks jurisdiction to adjudicate Plaintiffs claim under Article IV, § 95 of the Alabama Constitution and their state-law claims for breach of contract and intentional interference with contractual relations. The Defendants argue that these state-law claims are barred by the Eleventh Amendment, citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89. (See Defendants brief, Doc. #24, p.5, ¶2)

Plaintiffs first address the Eleventh Amendment Immunity defense and then the Defendants bold assertions that the Plaintiffs systematically misinterpret the 2003 Settlement Agreement.

A. Eleventh Amendment

1. Immunity

The Plaintiffs advance two reasons why the 1995 and the 2003 Agreement can be enforced without violating the Eleventh Amendment. First, the Plaintiffs contend that enforcement is permitted under the principles of Ex parte Young, 209 U.S. 123 (1908), Second, the Plaintiffs argue the State waived its Eleventh Amendment Immunity in the course of litigation.

This case involves the intersection of two areas of federal law: the Eleventh Amendment and the rules governing consent decrees or settlement agreements or contracts. The state officials argue that a federal court should not enforce a consent decree because of Eleventh Amendment Immunity.

As a participant in the administering of child support enforcement plans under Title IV-D of the Social Security Act, Alabama must meet certain federal requirements, including establishing state child support guidelines and reviewing those guidelines every four years. In reviewing the guidelines the State must conform to 42 U.S.C. §667 and 45 C.F.R. §302.56. To meet these requirements the Governor of Alabama instructed the Alabama Supreme Court to promulgate rules of court to establish Alabama's Child Support Guidelines. The Alabama Supreme Court formed the "Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement," (the Committee) to assist in the child support review process.

The federal child support program, incentive to states, is a cooperative federal-state program that provides federal funding for state child support enforcement programs. State participation is voluntary; but once a State elects to join the program, it must administer a state plan that meets federal requirements.

In 1993 and again in 1999, the plaintiffs sought injunctive and other relief against the State of Alabama and several officers of the Alabama Supreme Court, claiming that the Alabama child support guideline s program did not meet federal requirements and also violated several state laws. In both the 1993 and 1999 federal suit, the individuals were sued in their official and individual capacities and were represented throughout the litigation by the office of the Alabama attorney general.

The plaintiffs alleged that the Alabama child support program did not satisfy the requirements of federal law. The Alabama Supreme Court operated the Committee in secret and closed all deliberations from the public and refused to allow tape recording of Committee meetings. The first lawsuit in 1993 primarily hinged upon the Plaintiffs first amendment claims similar to Thompson v. City of Clio, 765 F. Supp. 1066, 1070 (M.D.Ala.1991) (proscription of tape recording city council meeting "regulates conduct protected by the first amendment"). The District Court dismissed the case and the plaintiffs appealed. The Eleventh Circuit remanded the case upon appeal and issued the following opinion, Blackston v. Alabama, 30 F.3d 117 (11^th Cir. 1994.)

The second lawsuit in 1999 cited several violations of the 1995 Settlement Agreement reached in Blackston, Supra. The several claims included violations of federal law pertaining to Alabama s operation of its state plan for child support enforcement under the Social Security Act, Title IV-D.

After the 1999 suit was filed the State of Alabama and state officials moved to dismiss the claims against them on various immunity protections, including the Eleventh Amendment. However, the State of Alabama and the named state officials were NOT granted dismissal on immunity grounds. The State of Alabama and the named state officials did NOT object or appeal from this ruling. The State of Alabama remained in the suit. Following extensive settlement negotiations, the plaintiffs and the State of Alabama, including the named officials, agreed to resolve the 1999 suit by entering into a Settlement Agreement and Release.

This controversy spans eleven years, involving three federal lawsuits, a decision by the Eleventh Circuit Court of Appeals and culminating in two separate Settlement Agreements and a federal court order. The numerous defendants in this case have refused, sometimes maliciously and in bad faith, to abide by the U.S. Constitution, federal law, Alabama state law, the Eleventh Circuit s mandate in Blackston, Supra, two Settlement Agreements and an ORDER AND FINAL JUDGEMENT of this Honorable Court.

The claims against the State of Alabama and the state officials were settled in two Settlement Agreements, the first in 1995, (the 1995 Agreement,) an a second in 2003 (the 2003 Agreement.) The 2003 Agreement included, by reference, all of the 1995 Agreement. On 24 December 2003, the 2003 Agreement was approved by the Federal District Court in an ORDER AND FINAL JUDGMENT. (See Doc. #1, Exhibit C)

The Agreements require state officials to implement many specific proposals. The 1995 Agreement required that Plaintiff Blackston be appointed to the Committee. The Committee was required to make a good faith effort to operate the Committee, which is an integral part of Alabama s state plan for child support enforcement, in a fair manner to include Plaintiffs Blackston and Barber in the entire deliberative review process.

Again the State of Alabama failed to honor either of the two settlement agreements and sought to gerrymander the child support review process by leaving out Plaintiffs Blackston and Barber from knowledge and participation on the Committee. Judicial enforcement of the 1995 and the 2003 Agreements are the subject of the present dispute.

Approximate four months after the 2003 Agreement was entered, the plaintiffs filed a Verified Complaint seeking to enforce the Agreement in the District Court. The state officials, it is alleged, have not complied with the 2003 Agreement in various respects. The State of Alabama and state officials maintain that the Eleventh Amendment renders the decree unenforceable.

Other Circuits have reached the opinion that the Eleventh Amendment does not bar enforcement of consent decrees. See, e.g., Kozlowski v. Coughlin, 871 F.2d 241, 244 (CA2 1989); Wisconsin Hospital Assn. v. Reivitz, 829, F.2d 863, 868 (CA7 1987); Jeff D. v. Kempthorne (9th Cir. April 23, 2004) 365 F.3d 844.

The U. S. Supreme Court put the issue to rest in Frew v. Hawkins, 540 U.S. ___, January 14, 2004 (Slip Opinion) No.02-628, stating, that the Eleventh Amendment does not bar enforcement of consent decrees. Frew, Supra, (slip opinion), p.7, ¶1.

The Agreements here include a federal court order that springs from a federal dispute and furthers the objectives of federal law. Firefighters v. Cleveland, 478 U.S.: 501, 525. The Settlement Agreements in question here, state that the SETTLEMENT AGREEMENT AND RELEASE is enforceable as a contract. A violation of the agreement may be used as grounds for a breach of contract suit in Federal or state court. Both the 1995 and the 2003 Agreement have identical language as quoted above. In short, the Agreement creates "a mandatory, enforceable obligation. (See Verified Complaint, Doc. #1, Exhibit A, p.6, ¶9 and Exhibit B, p.7, ¶10.)

42 U.S.C. §667 and 45 C.F.R. §302.56 describe state requirements that states must implement and follow to qualify for federal funds under the Social Security Act, Title IV-D, states plan for child support enforcement. Common sense and constitutional principles also dictate that the first and fourteenth amendment also apply to the child support guideline s review process.

The 2003 Settlement Agreement is in response to extensive settlement negotiations wherein the State of Alabama agreed to immediately implement a child support guidelines review process, setting forth strict deadlines for completion. (See Doc. #1, Exhibit B, p.5, ¶4(a-c)). The 2003 Agreement further instructed the State of Alabama that, No provision of this SETTLEMENT AGREEMENT AND RELEASE shall be construed to contravene, alter, and/or supercede the authority of any law, rule and/or regulation of any department or agency of the State of Alabama. In short, the state must follow all laws pertaining to child support guideline reviews, including federal law, 42 U.S.C. §667 and 45 C.F.R. §302.56.

The Agreements here include a federal court order that springs from a federal dispute and furthers the objectives of federal law. Firefighters v. Cleveland, 478 U.S.: 501, 525. The plaintiffs' enforcement motion sought a remedy consistent with Ex parte Young and Firefighters and was accepted by the state officials when they asked the court to approve the Settlement Agreements in 1995 and again in 2003.

Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, in which the U. S. Supreme Court found Ex parte Young's rationale inapplicable to suits brought against state officials alleging state-law violations, is distinguishable from this case, which involves a federal court order entered to implement a federal statute. Enforcing the Settlement Agreements vindicates an agreement that the state officials reached to comply with federal law. Federal courts are not reduced to approving Settlement Agreements and hoping for compliance. Once entered, that Settlement Agreement may be enforced. (Emphasis added) See Hutto v. Finney, 437 U.S. 678, Pp 4-9. Frew v. Hawkins, 540 U.S. ___, January 14, 2004 (Slip Opinion) No.02-628, p6, ¶3 - p9, ¶1.

2. Damages under Eleventh Immunity

a). Official Capacity

Suing individuals in their official capacities is "another way of pleading an action against an entity of which an officer is an agent." Graham, 473 U.S. at 165, 105 S. Ct. at 3105. A state, a state agency, and a state official sued in his official capacity are not "persons" within the meaning of § 1983, thus damages are unavailable; but a state official sued in his official capacity is a person for purposes of § 1983 when prospective relief, including injunctive relief, is sought. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, n. 10, 109 S. Ct. 2304, 2312, n. 10, 105 L. Ed. 2d 45 (1989). Edwards v. Wallace Community College, 49 F.3d 1517, (11th Cir. 1995)

There are several types of relief that do not violate the constitutional prohibition against suing the state. These exceptions apply only when the litigant names a state employee in his or her official capacity and seeks relief other than money: Actions brought to compel state officials to perform their legal duties; actions brought to enjoin state officials from enforcing an unconstitutional law; actions to compel state officials to perform ministerial acts; and actions brought under the Declaratory Judgment Act. Ross v. Alabama, 893 F. Supp. 1545 (M.D. Ala. 1995). (emphasis added).

Portions of the Plaintiffs cause of action is in the nature of compelling state officers, sued in their official capacities, to perform ministerial acts and to perform their legal duties to operate the Committee in accordance with the 1995 Agreement and the 2003 Agreement and federal constitutional law and 42 U.S.C. §667 and 45 C.F.R. §302.56.

b.) Individual Capacity

Id. The Eleventh Amendment protects no personal assets in "individual" or "personal" capacity suits in federal court. Hafer v. Melo, U.S. , , 112 S. Ct. 358, 362, 116 L. Ed. 2d 301 (1991); Gamble v. Florida Dept. of Health & Rehab. Svcs., 779 F.2d 1509, 1518 (11th Cir.1986) ("The Eleventh Amendment provides no bar to recovery of damages against state officers acting in their individual capacities."). Hobbs v. Roberts, 999 F.2d 1526 (11th Cir. 1993)

That portion of Plaintiffs suit that seeks damages from Defendants in his individual capacity survives. The face of Plaintiff s complaint expressly states that he is suing Defendants both in their official and individual capacity. Dean v. Barber, 951 F.2d 1210 (11^th Cir. 1992)

B. Alabama s General Liability Trust Fund or Insurance

Other circuits have held that a state's decision to indemnify an officer does not turn the suit into one in the officer's official capacity. See Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988); Wilson v. Beebe, 770 F.2d 578 (7th Cir. 1985) (en banc). Reyes v. Sazan 168 F.3d 158, 163 (5th Cir. 1999)

We now turn to the question of whether, when a state voluntarily provides liability insurance to protect its employees from personal liability for money damages, the state's Eleventh Amendment immunity from suit is thereby extended to its employees sued in their individual capacity. It is undisputed that the money damages in this case will be paid through the state's liability insurance trust fund, which provides liability insurance for state officers and employees as protection against personal liability for damages arising out of the performance of their duties.

We note first that as an individual capacity suit this action is not "in essence one for the recovery of money from the state." Ford Motor Co., 323 U.S. at 464, 65 S. Ct. at 350. The essence of an individual capacity suit is that the plaintiff is seeking to recover from the individual defendant, who is personally liable for the judgment.6 Gamble v. Florida Dep't of Health & Rehabilitative Servs., 779 F.2d 1509, 1513 (11th Cir.1986).

Moreover, this Court has previously reasoned that Eleventh Amendment immunity applies only if the judgment must, under all circumstances, be paid out of state funds. Travelers Indem. Co. v. School Bd., 666 F.2d 505, 509 (11th Cir.), cert. denied, 459 U.S. 834, 103 S. Ct. 77, 74 L. Ed. 2d 74 (1982). This reasoning is congruous with the Supreme Court's teaching. In Edelman v. Jordan, for example, the Supreme Court stated that "the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." 415 U.S. at 663, 94 S. Ct. at 1356; see also Kentucky v. Graham, 473 U.S. at 167-68, 105 S. Ct. at 3106-07 (holding that, when a plaintiff prevails in a § 1983 suit against state employees in their individual capacities, the state cannot be held responsible for attorney's fees). The voluntary nature of the state's liability insurance trust fund precludes finding that the damages award must be paid by the state in this action.

The district court judgment in this case neither compels the state to act, Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006, 10 L. Ed. 2d 15 (1963), nor imposes liability upon the state. It only establishes the state employees' individual liability for their tortious conduct; the state acts of its own volition to protect its employees from money damages arising from their liability. Indeed, there is no use for the insurance protection if the employee is immune from suit by virtue of the state establishing the protection. See Rubacha v. Coler, 607 F. Supp. 477, 481 (N.D.Ill.1985) ("To hold otherwise would give the State carte blanche to provide a meaningless kind of paper protection--granting an "indemnification' that would, by its very existence, destroy the liability to which the indemnity purportedly extends.") We conclude that the existence of a voluntarily established liability trust fund does not make the state the real party in interest in this action and that the trust fund does not extend the state's Eleventh Amendment immunity to its employees sued in their individual capacity. Jackson v. Georgia DOT, 16 F.3d 1573, 1577-78 (11th Cir. 1994).

In 1983, the legislature enacted Act No. 83-521, 1983 Ala. Acts 809, which established the State Employees' Liability Insurance Fund ("the Fund"), in order to "provide for the protection of state employees ... for certain wrongful acts or omissions committed while in the performance of their official duties in the line and scope of their employment through the purchase of liability insurance or through the self-insurance of the several state departments, agencies, boards or commissions." (Codified at Ala. Code 1975, § 36-1-6.1.) Strength v. Alabama Department of Finance, 622 So2d 1283 (S.Ct. 1993)

"(d) 'Insured ' means any person employed, appointed, elected, hired or allowed to assume a temporary or permanent position or office in or with the State of Alabama or any of its departments, bureaus, offices, agencies, authorities, or boards. Strength v. Alabama Department of Finance, 622 So2d 1283 (S.Ct. 1993)

Defendants Houston, Gosa, Helms, Jackson and Maddox are employees of the State of Alabama and are covered under the Fund.

Section § 36-1-6.1 was enacted to protect the employees of the State of Alabama from liability "for certain wrongful acts or omissions committed while in the performance of their official duties," Act No. 83-521, 1983 Ala. Acts 809, not to protect the State. Such provisions are calculated, inter alia, to "create a secure working environment wherein employees do not feel paralyzed in the performance of their duties for fear of being sued." P. Harper, Statutory Waiver of Municipal Immunity Upon Purchase of Liability Insurance in North Carolina and the Municipal Liability Crisis, 4 Campbell L. Rev. 41, 72 (1981). Indemnification arrangements are also enacted to create "an incentive for ... government employees and officers to continue their employment and for new employees and officers to be attracted to government positions," thus enabling government entities to "enlist and maintain a stable and functional workforce." Comment, Waiving Local Government Immunity in North Carolina: Risk Management Programs Are Insurance, 27 Wake Forest L. Rev. 709, 715 (1992). This is particularly significant in view of the fact that "the State and its agencies have absolute immunity from suit in any court."4 Phillips v. Thomas, 555 So. 2d 81 (Ala. 1989); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). Strength v. Alabama Department of Finance, 622 So2d 1283 (S.Ct. 1993)

Moreover, as indicated by the instrument's terminology, the pertinent portions of which are emphasized above, the instrument clearly purports to be a contract of insurance. Its drafters chose to define the rights and duties of the parties in language referable to insurance, rather than to administrative "guidelines." "If it looks like a duck, walks like a duck, and quacks like a duck, it must be a duck. And so it is with this 'duck'; it must be insurance." (Emphasis added) Comment, Waiving Local Government Immunity in North Carolina: Risk Management Programs Are Insurance, 27 Wake Forest L. Rev. 709, 715 (1992) (quoting City of Laramie v. Facer, 814 P.2d 268, 273 (Wyo. 1991)) Strength v. Alabama Department of Finance, 622 So2d 1283 (S.Ct. 1993)

Defendants Houston, Gosa, Helms, Jackson and Maddox failed to perform their official duties to update the child support guidelines in accordance with the 2003 Agreement and failed to perform their official duties under the 1995 and 2003 Agreement. Defendants Houston, Gosa, Helms, Jackson and Maddox failed to perform their official duties by holding closed door meetings of the Committee in violation of the 2003 Agreement, ¶4(a) which states in part, . . . The Defendants shall submit a request to the Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement to convene a new committee within three (3) months from September 25, 2003. . . (emphasis added).

Defendants Houston, Gosa, Helms, Jackson and Maddox failed to perform their official duties by failing to consider some comparable entity to update Alabama s Schedule of Basic Child Support Obligations, instead choosing to contract with Policy Studies, Inc., in a closed meeting, far removed from public scrutiny and without Plaintiffs Blackston and Barber s knowledge or participation, the Defendants secretly made the most important decision of any child support update, i.e. who or what entity will update the Schedule of Basic Child Support Obligations. (See 2003 Agreement, Doc. #1, Exhibit B, p.5, ¶4(b)

Defendants Houston, Gosa, Helms, Jackson and Maddox failed to perform their official duties by holding closed door Committee meetings in violation of the 2003 Agreement, ¶4(c) which states in part, It is understood between the parties that the public may attend the meetings . . . . Not only was the public prohibited from attending all Committee meetings for the first six months, Plaintiffs Blackston and Barber were denied all knowledge and participation and an opportunity to attend Committee meetings during the same time period. (See Doc. #1, pp.8-9, ¶¶48-51).

C. Failed to Perform a Legal Duty

Settlement Agreements are Enforced as State Law Contracts

"An unexcused failure to perform a contract is a legal wrong. Action will lie for the breach although it causes no injury. Nominal damages are then awarded.... Cooley v. Guld Bank, Inc, 773 So2d 1039 (Civ. App. 1999)

A legal duty is "an obligation arising from a contract of the parties or the operation of the law." Black's Law Dictionary 804 (5th ed. 1979).

A legal duty to exercise care, therefore, arises where the parties are bound by contract, Pugh v. Butler Telephone Co., supra, or where the obligations are "expressly or impliedly imposed by statute, municipal ordinance, or by administrative rules or regulations, or by judicial decisions." 57 Am. Jur.2d, Negligence § 36 at 382 (1988). King v. National Spa & Pool Inst., Inc, 570 So2d 612, (Ala. 1990)

An award of nominal damages is proper where a defendant breached a legal duty but the plaintiff either suffered no actual damage or failed to prove actual damage. James S. Kemper & Co. Southeast, Inc. v. Cox & Associates, Inc., 434 So. 2d 1380, 1385 (Ala. 1983).

Our supreme court recently addressed the doctrine of sovereign immunity in State Highway Dep't v. Milton Construction Co., 586 So. 2d 872 (Ala. 1991). In Milton our supreme court held that a construction company's suit was not barred by the doctrine of sovereign immunity, because it was in the nature of an action to compel a state officer to perform a legal duty. Black's Law Dictionary (5th ed.) defines the term "legal duty" as "an obligation arising from contract of the parties or the operation of the law. . . ." State Dept. of Human Resources v. Kelly, 623 So2d 738 (Civ. App. 1993)

Where court order provided that State Department of Human Resources was to pay to former wife $175 and the state $25 of each $200 payment from former husband, until the state was fully reimbursed for $728 in Aid to Dependent Children (ADC) benefits it had previously paid to former wife, former wife's action against DHR was not barred by sovereign immunity. When DHR refused send $175 to former wife from a $200 payment, it failed and refused to perform a legal duty lawfully imposed upon it by the trial court's order. This case fell under the recognized "legal duty" exception to the protection afforded the state or its agencies. State Dep't of Human Resources v. Kelly, 623 So. 2d 738 (Ala. Civ. App. 1993).

Director of Alabama Department of Transportation was not immune from construction company's suit to compel him to perform his legal duty under the law and award contract to construction company. Clark Constr. Co. v. Pena, 930 F. Supp. 1470 (M.D. Ala. 1996).

Portions of the Plaintiffs cause of action is in the nature of compelling state officers, sued in their official capacities, to perform ministerial acts and to perform their legal duties to operate the Committee in accordance with the 1995 and 2003 Agreements and federal constitutional law and 42 U.S.C. §667 and 45 C.F.R. §302.56.

1. Damages and Immunities

(a) Plaintiffs Damages

"An unexcused failure to perform a contract is a legal wrong. Action will lie for the breach although it causes no injury. Nominal damages are then awarded.... Cooley v. Guld Bank, Inc, 773 So2d 1039 (Civ. App. 1999)

An award of nominal damages is proper where a defendant breached a legal duty but the plaintiff either suffered no actual damage or failed to prove actual damage. James S. Kemper & Co. Southeast, Inc. v. Cox & Associates, Inc., 434 So. 2d 1380, 1385 (Ala. 1983).

In the present case Blackston and Barber were clearly entitled to bring an action for damages resulting from Defendants Houston, Gosa, Helms, Jackson and Maddox s alleged breaches of the 2003 Agreement. If Blackston and Barber are able to establish that breaches have occurred, then they are entitled to nominal damages even if there was failure of proof regarding actual damages. Williams v. Citizens Bank of Guntersville, 350 So.2d. 1031 (Ala. 1977). When the evidence establishes a breach, even if only technical, there is nothing discretionary about the award of nominal damages. Ellis v. W.L. Casey & Co., 58 So. 724 (1912). James S. Kemper & Co. Southeast, Inc. v. Cox & Associates, Inc., 434 So. 2d 1380, 1385 (Ala. 1983)

(b) Damages assessed against state officials and immunity

The Alabama Supreme Court recently addressed the doctrine of sovereign immunity in State Highway Dep't v. Milton Construction Co., 586 So. 2d 872 (Ala. 1991). In Milton our supreme court held that a construction company's suit was not barred by the doctrine of sovereign immunity, because it was in the nature of an action to compel a state officer to perform a legal duty. Black's Law Dictionary (5th ed.) defines the term "legal duty" as "an obligation arising from contract of the parties or the operation of the law. . . ." State Dept. of Human Resources v. Kelly, 623 So2d 738 (Civ. App. 1993)

A breach of contract occurs with the failure, without legal excuse, to perform any promise which forms the whole or part of a contract. Blacks Law Dictionary, 6^th Ed. 1990, p.188) A continuing breach occurs where the state of affairs, or the specific act, constituting the breach, endures for a considerable period of time, or is repeated at short intervals. Blacks Law Dictionary, 6^th Ed. 1990, p.189)

A state official is not entitled to immunity in an action alleging that the official acted fraudulently, in bad faith, and beyond his authority, because such an action is exempt from the sovereign immunity defense. Shoals Community College v. Colagross, 674 So. 2d 1311 (Ala. Civ. App. 1995), cert. denied, 674 So. 2d 1315 (Ala. 1996).

While sovereign immunity shields a potential defendant from liability for negligence or wantonness, it does not protect one from fraudulent or bad faith conduct. Does v. Covington County Sch. Bd. 969 F. Supp. 1264 (M.D. Ala. 1997), aff'd without op., 149 F.3d 1195 (11th Cir. 1998). The Plaintiffs allegations against Defendants Houston, Gosa, Helms, Jackson and Maddox allege substantial evidence of bad faith and fraud in failing to perform the obligations of the 1995 Agreement and the 2003 Agreement. (See Verified Complaint, Doc. #1, pp. 24-37.)

D. Qualified Immunity

After eleven (11) years of litigation in federal court, three (3) federal lawsuits, a decision by the Eleventh Circuit Court of Appeals, two (2) settlement agreements and a federal court order the Defendants now claim ignorance of the law and that they did not know their actions would violate clearly established statutory or constitutional rights of which a reasonable person would have known.

When a violation of a fundamental right is so obvious that no half-way intelligent public official could conclude in good faith that his proposed action is constitutional, a public official who does it anyway cannot claim qualified immunity; the purpose of qualified immunity is to protect government officials from liability for conduct they could not reasonably have known was unlawful. Skurstenis v. Jones, 236 F.3d 678 (11th Cir. 2000).

Under qualified immunity analysis, the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly unconstitutional acts took place. See Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991). . . . The Defendants Brief in Support of Motion to Dismiss is completely void of any evidence or statements that prove the Defendants were acting within the scope of their discretionary authority when the allegedly unconstitutional acts took place. The cursory reference in the Defendants Brief that, It is clear from Plaintiffs Complaint that all of Defendants actions (and alleged actions) were done within the scope of each Defendant s respective discretionary authority, is wholly insufficient to establish evidence or proof of discretionary acts.

Once the public official has established that he was acting within the scope of his discretionary authority, the burden shifts to the plaintiff to establish that qualified immunity does not apply. See Lee v. Ferraro, 284 F.3d at 1194. . . . Storck v. City of Coral Springs, 354 F.3d 1307, 1313 14 (11th Cir. 2003).

Discretionary acts have been been defined as those acts [as to which] there is no hard and fast rule as to course of conduct that one must or must not take and those requiring exercise in judgment and choice and [involving] what is just and proper under the circumstances. Black s Law Dictionary 467 (6^th ed. 1990) Faulkner v. Patterson, 650 So.2d 873, (S.Ct. 1994).

The 2003 Agreement, ¶4(a-c) are commands and therefore not discretionary. All three paragraphs begin with, The Defendants shall. (emphasis added) The word shall, as used in the 2003 Agreement, ¶4(a) is clear and unambiguous and is imperative and mandatory. Ex. Parte Looney, (S.Ct. 2001).

Alabama law defines the word shall as follows:

As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term shall is a word of command, and one which has always [been given] or which must be given a compulsory meaning, as denoting obligation. The word in ordinary usage means must and is inconsistent with a concept of discretion. Ex Parte Looney. (S.Ct 2001), quoting Ex parte Prudential Ins. Co of America. (721 So2d 1135, S.Ct. 1998).

It is clear from Plaintiffs Verified Complaint that all of Defendants alleged actions were outside the scope of each Defendant s respective discretionary authority. The Defendants were commanded in ¶4(a), by explicit wording in ¶4(a) to make a request to the Committee to convene [or assemble] the Committee within three (3) months from 25 September 2003. The Defendants failed to assemble the Committee and failed to comply with ¶4(a). The Defendants refused to notify the Plaintiffs of the 8 January 2004 meeting and deprived the Plaintiffs of knowledge and from participating in the meeting. In short, the meeting was a secret proceeding in violation of the 2003 Agreement, ¶4(c).

The Defendants used the first three (3) months from 25 September 2003 to take unfair advantage of the Plaintiffs and freeze out the Plaintiffs from important Committee functions. The Defendants actions include violations of the first and fourteenth amendment, 42 U.S.C. §667 and 45 C.F.R. §302.56 and violations of Alabama s Open Meetings and Records laws.

The Defendants actions violate clearly established statutory or constitutional rights of which a reasonable person would have known. Thus, all of the Defendants are NOT entitled to invoke the defense of qualified immunity in their individual capacities.

Defense of qualified immunity does not apply to allegations of bad faith and fraud; likewise, it does not apply to actions against state officials in their official capacity based on acts committed beyond their authority. Nance ex rel. Nance v. Matthews 622 So. 2d 297 (Ala. 1993).

The Court should find that Defendants Houston, Gosa, Helms, Jackson and Maddox deliberately and intentionally violated the 2003 Agreement in a number of respects. The Court should find that the herein named Defendants failed to include Blackston and Barber in the decision making process of the Committee for the first six (6) months from 25 September 2003. The Court should find that the herein named Defendants failed to include Blackston and Barber in the day to day operations of the Child Support Committee during the initial phase of Committee deliberations and in accordance to the 2003 Agreement, ¶4(a-c), in a way that prevented the Plaintiffs from exercising their rights under the 2003 Agreement. The Court should find that the herein named Defendants denied the Plaintiffs from information about the Committee in a way that prevented the Plaintiffs from informing their constituents about the ongoing child support review process.

All defendants failed to update the child support guidelines, as required by 42 U.S.C. §667 and 45 C.F.R. §302.56. All piece-meal updates accomplished by the defendants from December 1995 to present occurred in bad-faith, violated the 1995 and the 2003 Agreements, Alabama s Open Meetings Law, the Eleventh Circuit s opinion in Blackston v. State, 30 F.3d 117 (11^th Cir. 1994) and the first and fourteenth amendments.

The District Court in Case #2:99cv295-A found that the District Court is the appropriate forum for the above case, because the Release and Settlement Agreement itself states that, A violation of the agreement may be used as grounds for a lawsuit for breach of contract in state or federal court. (Order, Case #2:99cv295-A, Doc #35, ¶3, pp.3-4).

The Court is aware that in their Motion to Dismiss, the Defendants raised various immunity issues, but With respect to the breach of contract claim, however, the parties agreed that a violation of the Release and Settlement Agreement could be remedied by suit in state or federal court. (Order, Doc #35, p.4, ¶2).

There are four general categories of actions that do not come within the prohibition of this section: (1) Actions brought to compel state officials to perform their legal duties; (2) Actions brought to enjoin state officials from enforcing an unconstitutional law; (3) Actions to compel state officials to perform ministerial acts; and (4) Actions brought under the Declaratory Judgments Act, § 6-6-222 et seq., seeking construction of a statute and how it should be applied in a given situation. Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971); Taylor v. Troy State Univ. 437 So. 2d 472 (Ala. 1983); Parker v. Amerson 519 So. 2d 442 (Ala. 1987); Ross v. Alabama, 893 F. Supp. 1545 (M.D. Ala. 1995).

The Plaintiffs Verified Complaint, Claim I and Claim II is replete with allegations of the Defendants failure to perform their legal duties under the 1995 and 2003 Agreements. (Doc. #1, p7-37). The Plaintiffs Verified Complaint, Claim VII is a direct challenge to the constitutionality of Alabama s Child Support Guidelines. (Doc. #1, p54-69). The Plaintiffs Verified Complaint, Claim I and Claim II is replete with allegations of the Defendant s failure to perform simple ministerial acts under the 1995 and 2003 Agreements. (Doc. #1, p7-37).

Qualified immunity shields government officials from both suit and liability if their conduct violates no clearly established right of which a reasonable person would have known. See Santamorena v. Georgia Military College, 147 F.3d 1337, 1339-40 (11th Cir. 1998).

One way that a plaintiff can satisfy the qualified immunity standard is to point to case law which predates the official's alleged improper conduct, which case law involves materially similar facts and truly compels the conclusion that the plaintiff had a right under federal law. See Santamorena, 147 F.3d at 1340.

The Eleventh Circuit s prevailing case law includes materially similar facts and the impressive accumulation of case law, truly compels the conclusion that the plaintiffs had a right under federal law to record matters of public interest. Plaintiffs allege that the Defendants in the present case failed to convene or assemble the Committee within the required time and deliberately conducted secret meetings during the first four months to freeze out Blackston and Barber from knowledge and participation on the Committee. By freezing out Blackston and Barber from the Committee for the first four months the Plaintiffs were precluded from exercising their first and fourteenth amendment right to Committee functions and due process, equal treatment and equal protection.

Indeed, the prevailing case law involves the same Defendants. In Blackston v. Alabama, 30 F.3d 117 (11th Cir.1994) the Court ruled that the First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest. See Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir.1994) (finding that plaintiffs' interest in filming public meetings is protected by the First Amendment); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing a "First Amendment right to film matters of public interest"); Iacobucci v. Boulter, 1997 U.S. Dist. LEXIS 7010, No. CIV.A. 94-10531 (D.Mass, Mar. 26, 1997) (unpublished opinion) (finding that an independent reporter has a protected right under the First Amendment and state law to videotape public meetings), Smith v. City of Cumming, 212 F.3d 1332, (11th Cir. 2000)

For the third time in eleven (11) years, suit was brought against the State of Alabama and certain members of the Alabama Supreme Court Advisory Committee on Child Support and Enforcement for the same conduct that violates the Plaintiffs first amendment rights. Even more compelling, the third suit involves a contempt of court claim for violations of a federal court order, ( See Doc. #1, Exhibit C)

The plaintiffs must show that, when the defendant acted, the law established the contours of a right so clearly that a reasonable official would have understood his acts were unlawful. Kelly v. Curtis, 21 F.3d 1544, 1549 (11th Cir. 1994.) The instant case draws a bright- line directly to the Defendants. The Defendants are subject to the bright-line criterial established in Blackston v. Alabama, 30 F.3d 117 (11th Cir. 1994.).

As to qualified immunity, in Blackston, Supra, the Eleventh Circuit gave clear interpretation to the Plaintiff s rights. The Plaintiff s, in the 1993 child support guidelines update process, attempted to record the activities of the Committee and were partially thwarted by Defendant Dorrough. The Plaintiffs filed suit and upon appeal the Eleventh Circuit stated that their claim is not moot because this situation is

capable of repetition, yet evading review. (Citations omitted,) Blackston v. Alabama, 30 F.3d 117, n.1 (11th Cir. 1994.)

The law is clear and well established that any attempt to thwart the plaintiff s attempts to record the Child Support Committees activities and freeze out the Plaintiffs from the update process, is a violation of the Plaintiff s first amendment rights.

By virtue of the 1995 and 2003 Agreements and clearly established law, the Defendants knew and understood that their conduct violated clear and established principles of law. Defendant s are NOT entitled to qualified immunity.

E. Independent Basis over Breech of Contract Claims and

the State of Alabama Must not be Dismissed From the Case.

The Court has an independent basis over the Plaintiffs Breech of Contract Claims. The State of Alabama, et al., agreed in the 1995 Agreement and again in the 2003 Agreement that a breech of either agreement would entitle either party to bring suit in federal or state court. (See Doc. #1, Exhibit A, 1995 Agreement, p.6, ¶9) and (Doc. #1, Exhibit B, 2003 Agreement, p.7, ¶10)

The Defendants voluntarily entered into federal court on 11 May 2004 to enforce portions of the 2003 Agreement. The Defendants clearly demonstrated their intentions under the 1995 and 2003 Agreements, to enforce provisions of the Agreements in federal court. The state defendants authored both agreements with full knowledge that federal court would be the prearranged, agreed upon venue to enforce the agreements. On 11 May 2004 the State of Alabama released all doubts as to their true intentions on a choice of venue. Plaintiffs Blackston and Barber are presently defending themselves against charges that they violated the 2003 Agreement including a MOTION FOR SANCTIONS. (See Case # 2:99cv295-A, Doc. #213 and Court Order Doc. #216.)

The Eleventh Amendment . . . presents no bar to a state affirmatively entering a federal forum voluntarily to pursue its own interest. But it would violate the fundamental fairness of judicial process to allow a state to proceed in federal court and at the same time strip the defendant of valid defenses because they might be construed to be affirmative claims against the state. . . . For this reason, we hold that to the extent a defendant's assertions in a state-instituted federal action, . . . . . . . . . , amount to a compulsory counterclaim, a state has waived any Eleventh Amendment immunity against that counterclaim in order to avail itself of the federal forum. In Re Burke 146 F.3d 1313, (11th Cir. 1998)

There are certain well-established exceptions to Eleventh Amendment immunity. First, a state may waive its Eleventh Amendment immunity and consent to suit in federal court. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S. Ct. 3142, 3145, 87 L. Ed. 2d 171 (1985). In Re Burke, 146 F.3d 1313, 1316-17, (11th Cir. 1998)

Additionally, in the absence of explicit consent by state statute or constitutional provision, a state may consent to a federal court's jurisdiction through its affirmative conduct. See Gardner v. New Jersey, 329 U.S. 565, 573-74, 67 S. Ct. 467, 472, 91 L. Ed. 504 (1947); Schlossberg v. Maryland Comptroller of the Treasury (In re Creative Goldsmiths of Washington, D.C., Inc.), 119 F.3d 1140, 1148-49 (4th Cir. 1997), cert. denied, 140 L. Ed. 2d 670, 118 S. Ct. 1517 (1998).

As previously discussed, on two (2) different occasions, the Defendants have agreed to federal or state court jurisdiction to enforce the agreements. The Defendants entered into a Release and Settlement Agreement with the Plaintiffs that specifically removes all the Defendants immunity defenses. The Release and Settlement Agreement provides that either party may bring suit in federal or state court for violations of the Release and Settlement Agreement. (See Verified Complaint, Doc. #1, Exhibit A, p.6, ¶9 and Exhibit B, p.7, ¶10.) (footnote 4 )The State's consent must be unequivocally expressed. Edelman, 415 U.S. at 673, 94 S. Ct. at 1360-61. The doctrine of Ex Parte Young permits suits against state officials to enforce their compliance with any federally-created right. See Charles Alan Wright, Law of Federal Courts § 48 (1994). Chavez v. Arte Publico Press, 157 F.3d 282, (5th Cir. 1998)

Indeed, the Defendants unequivocally consented to a district court ruling with respect to a federally protected right, a first amendment right previously granted to Blackston and Barber in, Blackston v. Alabama, 30 F.3d 117 and 42 U.S.C. §667 and 45 C.F.R. §302.56. We hold that there has been a sufficient showing that the Defendants waived their Eleventh Amendment immunity. The State of Alabama has been a defendant in this series of lawsuits since 1993. The State is named on the 1995 Agreement and the 2003 Agreement as the principal defendant. The State must not be dismissed from the present case.

Additionally, Plaintiffs seek to enjoin Defendants from further violations of their First Amendment rights. The Eleventh Amendment does not bar suits for injunctive relief. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10, 109 S. Ct. 2304, 2311 n. 10, 105 L. Ed. 2d 45 (1989).

F. Misinterpretations of the 2003 Settlement Agreement

(a). Construction Generally

As the Eleventh Circuit recently reiterated, a settlement agreement is essentially a contract and is subject to the traditional rules of contract interpretation. Norfolk So. Corp. v. Chevron, U.S.A., Inc., No. 03-14473, 2004 WL 1210866, at *4 (11th Cir. June 3, 2004); see also Hayes v. Nat l Serv. Indus., 196 F.3d 1252, 1254 (11th Cir. 1999) ( In general, the law of contracts governs the construction and enforcement of settlement agreements. ); Blum v. Morgan Guaranty Trust Co. of N.Y., 709 F.2d 1463 (11th Cir.1983); Fla. Educ. Ass n, Inc. v. Atkinson,481 F.2d 662, 663 (5th Cir. 1973) ( [T]he construction and enforcement of settlement agreements are governed by principles of local law applicable to contracts generally. )

Where the plain meaning of an agreement is clear, [the court] may not go beyond the four corners of the document to look for additional evidence of the drafters intentions. Norfolk So. Corp. v. Chevron, U.S.A., Inc., No. 03-14473, 2004 WL 1210866, at *4 (11th Cir. June 3, 2004).

The Defendants explain the meaning of convene in ¶4(a-c) by going outside the four corners of the 2003 Agreement by resorting to Black s Law Dictionary and two (2) Alabama Supreme Court ORDERS relating to Committee appointments. (See Defendants Brief, pp.7-9, §2.) Common sense and according to Norfolk, if the word, convene needs defining, the 2003 Agreement should define the term, thereby preventing going outside the four corners of the document. The Defendants attempts to explain the meaning of convene in a way that differs from the Plaintiffs definition, renders the meaning of ¶4(a-c) unclear and ambiguous.

Under Alabama law, if the language of an instrument is ambiguous in any respect, the surrounding circumstances and the construction placed on the language by the parties may be taken into consideration in determining the meaning of the instrument. Furthermore, the intent of the parties may be ascertained by parol evidence." Decker v. Marshall-Dekalb Elec. Coop. 659 So. 2d. 926 (S.Ct. 1995).

(b). Consistent meaning of Convene Throughout the 2003 Agreement

In Sorenson v. Secretary of the Treasury, 475 U.S. 851, 860 (1986), the Court reasoned that, [T]he normal rule of statutory construction assumes that

identical words used in different parts of the same act are intended to have the same meaning. See, e.g., National Ropes v. National Diving Serv., Inc., 513 F.2d 53, 58 (5th Cir. 1975) (noting that "it is logical to assume that . . . words [used in different clauses of the contract] were intended to convey the same meaning both times they were used"). Cf. Sullivan v. Stroop, 496 U.S. 478, 484, 110 S. Ct. 2499, 2504, 110 L. Ed. 2d 438, (1990) (espousing "normal rule of statutory construction" that "identical words used in different parts of the same act are intended to have the same meaning"). Matador Petroleum Corp. v. St Paul Surplus Lines Ins. Co,. 174 F.3d 653, 657 (5th Cir. 1999)

The substantial relation between ¶4(a) and ¶4(b) and ¶4(c) in the 2003 Agreement presents a classic case for application of the "normal rule of statutory construction that "identical words used in different parts of the same act are intended to have the same meaning." Sorenson v. Secretary of the Treasury, 475 U.S. 851, 860 (1986) (quoting Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934) (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)).

The Defendants admit that convene means to call together or to cause to assemble. Black s Law Dictionary 332 (7th ed. 1999), (Defendants Brief, Doc.#24, p7, ¶2). The Defendants use one meaning for the word, convene in ¶4(a) and an entirely different meaning for the word, convene in ¶4(c). The Defendants separate definitions of convene have rendered the 2003 Agreement, ¶4(a-c) ambiguous therefore the terms and the meaning of the 2003 Settlement Agreement ¶4(a-c) are unclear. The Defendants interpretation of the 2003 Agreement, ¶4(a-c) also establish several disputed facts.

The Defendants offer two different meanings for the word convene and go outside the four corners of the 2003 Agreement to interpret the meaning of ¶4(a-c). The Plaintiffs simply have a different interpretation of ¶4(a-c) than the one espoused by the Defendants. The Plaintiffs definition and explanation of the 2003 Agreement do not go outside the four corners of the 2003 Agreement.

(c). Defining the Word CONVENE

To explain the meaning of convene the Defendants point to two exhibits in their MOTION TO DISMISS, Doc.#23, Exhibit 1 and 2, containing the Alabama Supreme Court s ORDER, dated 23 December and 30 December 2003, respectfully, wherein members of the Committee were appointed or reappointed. The exhibits detail the appointments or reappointment of Committee members and is totally silent about convening the new Committee. The Defendants position is to somehow redefine the meaning of convene to mean appoint.

The mandatory request in ¶4(a) was made to the Committee. The Committee is powerless to appoint Committee members, that being the sole prerogative and function of the Alabama Supreme Court. The 2003 Agreement, ¶4(a) further explains that the Committee will convene or assemble, based on the expiration of the existing terms and/or vacancies of the current committee members. The appointment and reappointment of new and/or addition Committee members is not a consideration in ¶4(a).

Therefore, the only reasonable explanation for the mandatory request to the Committee in ¶4(a) is that the current Committee would assemble for a meeting to establish all the prerequisites necessary to prepare for the formal official public hearing that was to occur within six (6) months from 25 September 2003. (See 2003 Agreement, Doc. #1, Exhibit B, p.5, ¶4(c).

Additionally, the 2003 Agreement, ¶4(a) is not concerned with appointing the Committee members. Appointing the Committee members was succinctly articulated in the 2003 Agreement, ¶3(b). If any other paragraph in the 2003 Agreement, specifically ¶4(a) dealt with Committee appointments, ¶4(a) would have explicit language to that effect. No further mention of appointments are in the 2003 Agreement, other than ¶3(b).

Any reasonable person should know that the Committee should elect its officers BEFORE any public meeting. Any reasonable person should know that the Committee should establish Internal Operating Procedures and Rules of Order during the first Committee meeting which would have occurred, by contract, within the three (3) months after 25 September 2003, well before the public meeting within six (6) months of 25 September 2003.

Any reasonable person would conclude that the election of officers, especially a recording secretary, would occur well before any formal meetings before the pubic. To plan a public meeting without establishing some kind of order and method of recording the meeting is inconsistent with an ordinary Committee meeting s plan. The defendants disregard the orderly procedures and requirements of conducting Committee meetings that have been clearly established throughout all society.

The first and only public meeting occurred without any planning that any reasonable person would conclude is the normal operation of Committee business. The reason for such poor planning is because the Defendants sought to gerrymander the Child Support Guidelines Update process to secretly chose Policy Studies, Inc., as the sole vender to update Alabama s Schedule of Basic Child Support Obligations. (the Schedule) (See Doc. #1, pp.9-14, ¶53-81).

The failure to convene the Committee within three (3) months from 25 September 2003 violated a significant portion of the 2003 Agreement and allowed the Defendants to gerrymander the update process in violation of the Plaintiffs rights under the 2003 Agreement, ¶4(a-b) and the first amendment and the fourteenth amendment.

The public meeting was held without establishing any of the above rules and procedures with the express purpose of freezing Blackston and Barber out of the first phrase of the deliberative process wherein Policy Studies, Inc., was chosen as the sole vender to update the Schedule of Basic Child Support Obligations. The secret meetings, on or about 8 January 2004, held without Blackston and Barber s participation, was used to solicit the 1,100 venders of toilet paper to update the Schedule. (See Verified Complaint, Doc. #1, pp.12-14, ¶¶71-81)

This is not a good faith effort to solicit vendors to update the child support schedule. The Schedule is an integral part of Alabama s Child Support Guidelines and is the heart and soul of Alabama s child support guidelines review process, second only to including the public in all the deliberative review process.

The defendants deliberately failed to convene or assemble the Committee for the selection of officers, or the determination of rules of order, or issues concerning security or to discuss other comparable entities to update the Schedule as required by the 2003 Agreement, ¶4(a-b). It appears that most of the planning was done in secret meetings far removed from the Plaintiffs knowledge or participation and from public scrutiny in violation of the 2003 Agreement, ¶4(c).

The Plaintiffs interpretation of the 2003 Agreement was clear during the Contract negotiations. The Defendants acknowledge their agreement with the same understanding during the settlement negotiations. After agreeing to bring together or assemble the Committee within three (3) months of 25 September 2003 the Defendants now wish to trivialize the meaning of the 2003 Agreement, ¶4(a).

(d). Contract Definitions

The 2003 Agreement does not define the meaning of "convene." The Defendants could maintain that the absence of such terms defining "convene" that the 2003 Agreement cannot be construed to mean to impart such rights upon the plaintiffs. However, assertions that the absence of defining language renders the contract clear and unambiguous are false; it is the absence of definitions, under these circumstances, that provides the ambiguity that requires the fact finder to determine the true meaning of the contract. Decker v. Marshall-Dekalb Elec. Coop. 659 So. 2d. 926 (S.Ct. 1995).

Under Alabama contract law, if the terms of a contract are ambiguous, then the determination of the true meaning of the contract is a question of fact for the fact-finder. Dill v. Blakeney, 568 So. 2d 774 (Ala. 1990). Ambiguity exists when a term is reasonably susceptible to more than one interpretation. Cannon v. State Farm Mut. Auto. Ins. Co., 590 So. 2d 191 (Ala. 1991). The Defendants readily admit that the word convene has more than one meaning. (See Defendants brief, Doc. #24, p.7, ¶2.) To confuse the meaning further, the Defendants assert a different meaning for ¶4(a-c) than the Plaintiffs.

"All the provisions of a contract must be construed together so as to give harmonious operation to each of them, so far as their language will reasonably permit." City of Fairhope v. Town of Daphne, 282 Ala. 51, 58, 208 So. 2d 917, 924 (1968). Reading the 2003 Agreement, ¶4(a-c) means Blackston and Barber have some rights and responsibilities equal to other Committee members, including the reasonable opportunity to participate in ALL Committee functions. In the 2003 Agreement, ¶4(a) and ¶4(c) the word, convene must be read as having the same meaning in all paragraphs.

It is a rule of long standing that the courts will construe doubtful terms in a contract more strongly against the party who framed or prepared them, and when the instrument is capable of two constructions, it should receive that which is most unfavorable to the maker. (Emphasis added). Bowing Office Sys. v. Johnson, 744 S.2d 915 (Civ. App. 1999). We note that the language of a contract is to be construed most strictly against the party drafting the contract. Loerch v. National Bank of Commerce of Birmingham, 624 So. 2d 552 (Ala. 1993). The State of Alabama Attorney General s Office drafted the 2003 Agreement, therefore the interpretation goes against the Defendants and in a light most favorable to the Plaintiffs. Cf. University of S. State v. Escambia County, 2000 Ala. Civ. App. LEXIS 414 (Civ. App. 2000)

"This rule of construction is not harsh, 'since one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning than one with whom he is dealing.'" Strickland v. General Motors Acceptance Corp., 578 So. 2d 1275, 1277 (S.Ct. 1991).

The ambiguous portions of the 2003 Agreement must be construed in favor of the plaintiffs to mean that the 2003 Agreement requires the Defendants to initiate a review of Alabama s child support guidelines by convening or assembling the committee within three (3) months from 25 September 2003 in accordance with the 2003 Agreement, ¶4(a).

The interpretation of ¶4(a) hinges, in part, on the meaning of convene, Paragraph 4(a) of the 2003 Agreement states in part, . . . The Defendants shall submit a request to the Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement to convene a new committee within three (3) months from September 25, 2003. . .

Plaintiffs Blackston and Barber did not receive any notice that the Committee would convene within the required three (3) months from 25 September 2003. The failure to convene or otherwise assemble the Committee within the required three (3) months time period wasted valuable time and tax dollars and placed the plaintiffs at an extreme disadvantage.

The failure to assemble the Committee within the three (3) months from 25 September 2003 denied the Plaintiffs right to attend the secret meeting on or about 8 January 2004 wherein Policy Studies, Inc., was chosen as the sole entity to update the Schedule of Basic Child Support Obligations. The event and issues surrounding the secret meeting are shrouded in mystery and secrecy wherein the Plaintiffs and the public were denied a right to attend and make a recording of the proceeding, in violation of the 2003 Agreement, ¶4(c) and the Plaintiffs first amendment rights.

The Defendants held a closed door meeting that excluded Blackston and Barber s right to be notified and an opportunity to participate in all Committee meetings and an opportunity to consider other comparable entities to update the child support schedule in accordance with the 2003 Agreement, ¶4(b).

The ambiguous portions of the 2003 Agreement, ¶4(a-c) must be construed in favor of the plaintiffs. The Plaintiffs must have an equal opportunity and knowledge about ALL Committee activities on an equal footing with other Committee members. The Plaintiffs must know and have assurance that Alabama officials will operate the Committee with voluntary and good faith cooperation.

(e). Covenant of Good Faith and Fair Dealing

The Defendants violated the covenant of good faith and fair dealing inherent in all contracts. Also, the Defendants violated ¶10 of the 1995 Agreement relating to obligations of good faith.

Every contract contains an implied in law covenant of good faith and fair dealing, this covenant provides that neither party will interfere with the rights of the other to receive the benefits of the agreement. Breach of the covenant provides the injured party with a tort action for

bad faith notwithstanding that the acts complained of may also constitute a breach of contract. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, cc (S.Ct. 1999).

The ambiguous portions of the Settlement Agreement must be construed in favor of the plaintiffs rights to include Blackston and Barber s right to information about the Committee, right to attend meetings, a right to record Committee meetings in accordance with the Eleventh Circuit s Mandate in Blackston, Supra and the Plaintiffs first and fourteenth amendment rights.

Plaintiff Barber was left completely out of all information, notices and correspondences about the Committee. Because the Defendants failed to include Plaintiff Barber in notifications and correspondence, etc., about the Committee, Barber would be unable to represent non-custodial parents on the Committee in Plaintiff Blackston s place, as required by the 2003 Agreement, ¶3(b).

"Ambiguity in a contract precludes the trial court from entering a summary judgment." Whitetail Dev. Corp. v. Nickelson, 689 So. 2d 865, 867 (Ala. Civ. App. 1996). A contract is ambiguous when one or more of its terms is reasonably susceptible to more than one interpretation. Id. In this case, the two sides have asserted different interpretations of the contract. Moore v. Awtrey, 2000 Ala. Civ. App. Lexis 695 (Civ. App. 2000).

The Defendants assertions that the Verified Complaint should be dismissed because the Plaintiffs systematically misinterpret the 2003 Settlement Agreement, effectively attempting to rewrite it are false. The Defendants assertions leave ¶4(a-c) of the 2003 Agreement ambiguous and create disputed facts that preclude summary judgment. For these reasons and more, the Plaintiffs Claims I and II must not be dismissed.

III. CLAIM III - FIRST AMENDMENT

Defendants argue that the Plaintiffs first amendment claim III and fourteenth amendment claim IV are barred by absolute legislative immunity, citing Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S. Ct. 1967 (1980). However, the Defendants fail to consider the existence of a contractual relationship in the present case.

A. Absolute Legislative Immunity

In Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S. Ct. 1967 (1980), the Supreme Court of the United States held that members of a state supreme court were immune from suit when acting in their legislative capacity in rulemaking. Id. at 734, 100 S. Ct. at 1976. This Court has held that this absolute legislative immunity applies not only to the members of the Supreme Court of Alabama, but also to other lower officials involved in the rule-making process. McFarland v. Folsom, 854 F. Supp. 862, 875 76 (M.D.Ala. 1994)

However, the respondent Consumers Union did not sue based upon a contractual relationship. The case arose in 1975 when respondent brought [462 U.S. 1137 , 1138] a suit under 42 U.S.C. 1983 alleging that particular provisions of the State Bar Code promulgated by the Virginia Supreme Court violated respondent's rights under the First and Fourteenth Amendments. Respondent prevailed in its 1983 suit for declaratory and injunctive relief against the Virginia Supreme Court and its Chief Justice.

Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S. Ct. 1967 (1980), is distinguishable from this case, which involves a federal court order entered to implement a federal statute. Enforcing the Settlement Agreements vindicates an agreement that the state officials reached to comply with federal law. Federal courts are not reduced to approving Settlement Agreements and hoping for compliance. Once entered, that Settlement Agreement may be enforced. (Emphasis added) See Hutto v. Finney, 437 U.S. 678, Pp 4-9. Frew v. Hawkins, 540 U.S. ___, January 14, 2004 (Slip Opinion) No.02-628, p6, ¶3 - p9, ¶1.

B. Free Speech

At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed. As the Supreme Court noted in Mills v. Alabama, 384 U.S. 214, 218-19 (1966): "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes."

Plaintiffs Blackston and Barber, no less than any other person, have a First Amendment right to engage in the discussion of public issues. Non-custodial fathers have first amendment right to vigorously and tirelessly advocate for themselves and their children. Indeed, freedom of speech and association demands that Plaintiffs Blackston and Barber enjoy free discussion of the state governmental affairs associated with their children. Child custody and support is a very hotly contested issue in Alabama courts. It is of particular importance that the members of Plaintiffs Blackston and Barber respective support groups have the unfettered opportunity to make their views known so that they may intelligently evaluate candidates' personal qualities for public office and their qualities and positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis observed that in our country 'public discussion is a political duty,' Whitney v. California, 274 U.S. 357, 375 (1927). Alabama's position on children of divorce effectively eliminates the father from his children lives except for financial child support, and actually discourages the fathers involvement in the lives of his children.

Of all the disadvantaged groups hit hardest by unreasonable and unlawful and unconstitutional child support guidelines are the poor among African Americans. The Defendants unconstitutional and unlawful operation of the Committee comes during a time when the more compassionate and caring officials of Alabama organize fatherhood initiatives to reconnect fathers with their families and children. Unreasonable child support such as that the Defendants advocate has been proven to drive non custodial fathers and mothers away from their families and children, which greatly increases the likelihood of public assistance for children.

The Alabama Department of Human Resources's TANF funds provide financial resources to the Children's Trust Fund (CTF) to award seed grants to over 30 fatherhood programs across the state. These programs offer a myriad of services to non-custodial parents including parenting classes, fatherhood responsibility training, and other father involvement services. A portion of the same TANF funds also fund the state s plan for child support enforcement which is the primary subject of the present litigation. (See public Internet document, located at <http://www.dhr.state.al.us/page.asp?pageid=427),> (July 08, 2004) and <http://library.adoption.com/Resources-and-Information/The-Alabama-Fatherhood-Initiative/article/5125/1.html,> (July 08, 2004).

Another good example is Alabama s recent Lost Dogs Campaign wherein the State of Alabama spent more tax dollars trying to collect back child support than was recovered from non-custodial parents. Several custodial parents complained that denigrating their children s father was having a negative effect upon their children. In all respects the Lost Dogs Campaign is a total failure. Major newspapers and Internet sites as far away as Colorado and Michigan are calling the child support courts, the Unfriendly Courts, Broken System Cheats Families.

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as the Supreme Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. Oregon, 299 U.S. 353, 364; Thomas v. Collins, 323 U.S. 516, 530. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Cites omitted; N.A.A.C.P. v. Alabama, 357 U.S. 449, 460.

Groups that find themselves unable to achieve their objectives through the ballot frequently turn to the courts. Under the present conditions of personal prejudices and public excitement against fathers, prevalent in the Child Support arena in Alabama today, litigation may be the sole practicable avenue open to litigants to petition for redress of their grievances.

It is unnecessary, to find constitutional protection for the rather cooperative, organizational activity disclosed by the record, whereby Plaintiffs Blackston and Barber seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Thus the Supreme Court has affirmed the right "to engage in association for the advancement of beliefs and ideas." N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 460; N.A.A.C.P. v. Button, 371 U.S. 415, 430 (1963).

"Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups . . . ." Sweezy v. New Hampshire, 354 U. S. 234, 250-251 (plurality opinion). Cf. De Jonge v. Oregon, 299 U.S. 353, 364-366; N.A.A.C.P. v. Button, 371 U.S. 415, 431 (1963).

Chairman Gosa s actions as chairman of the Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement lends itself to selective enforcement against unpopular causes. We cannot close our eyes to the fact that the Fathers civil rights movement has engendered the intense resentment and opposition of a politically dominant and opposing force in Alabama; litigation in the divorce courts of Alabama has been bitterly fought. In such circumstances, The Defendants have broadly curtailed group activity leading to litigation and has imposed a weapon of oppression. Plaintiffs Blackston and Barber were refused the necessary information disseminated by the committee and an adequate opportunity to participate in the formulation of policies and laws on child support. The Defendants actions could well freeze out of existence all activity on behalf of fathers and their children in Alabama. Plaintiffs Blackston and Barber have made an uncontroverted showing that on past occasions the State of Alabama has exposed non-custodial fathers but not mothers to economic reprisal, loss of employment, threats of physical coercion, and other manifestations of public hostility; all void of due process protections or fairness that civilized citizens of Alabama deserve.

Every citizen of these United States should enjoy their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition. Yick Wo v. Hopkins, Sheriff, 118 U.S. 356, 367 (1885).

The ban on Plaintiffs Blackston and Barber's right to tape record all Committee functions has some impact, however small or incidental, on how Plaintiffs Blackston and Barber are able to obtain access to and present information of a political nature to their constituents, and as such regulates conduct protected by the first amendment. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989); Spence v. Washington, 418 U.S. 405, 409-410, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (per curiam). Thompson v. City of Clio, 765 F.Supp. 1066, 1070 (M.D. Ala. 1991). As in Spence, this court is "confronted with a case of depravation of constitutional rights for the expression of an idea through activity," and "accordingly, must examine with particular care the interests advance by the Defendants to support their actions. Plaintiffs Blackston and Barber were not depraved of their First Amendment rights for the expression of just any idea; they were deprived of their rights for their expression of dissatisfaction with the policies of the Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement, expression situated at the core of our First Amendment values. See, e. g., Boos v. Barry, 485 U.S. 312 at 318 (1988); Frisby v. Schultz, 487 U.S. 474, 479 (1988); Texas v. Johnson, 491 U.S. at 411 (1989).

Plaintiffs Blackston and Barber stance is contrary to Chairman Gosa s and the remaining members of the Committee. The Supreme Court s decision in Boos v. Barry, Supra, tells us that this restriction on Plaintiffs expression and ability to provide their constituents information is content based.

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Texas v. Johnson, 491 U.S. at 414. Government may not prohibit expression simply because it disagrees with its message.

The requirement of content-neutrality is particularly important where, as in this case, government operates "at the core of the First Amendment" by regulating speech that is "political" or that touches on "public issues." Boos v. Barry, 485 U.S. 312, 317, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988).

"Indeed, there is perhaps no area of expression more deserving of constitutional protection and more fundamental to the democratic system of government whose vitality the first amendment was designed to safeguard, than communication by a political representative to his constituents. Brown v. Hartlage, 456 U.S. 45, 52-53, 102 S.Ct. 1523, 1528- 29, 71 L.Ed.2d 732 (1982)." Thompson v. City of Clio, 765 F.Supp. 1066, 1071, n. 12 (M.D. Ala. 1991).

The standard for the Defendants actions is old and well established. In Nesmith v. Alford, 318 F.2d 110, 121 (5th Cir. 1963,) this court stated that in an action for unlawful arrest a police officer's liberty ends when he seeks to, without warrant, arrest not the person threatening violence, but those who are its likely victims merely because the person arrested is engaging in conduct which, though peaceful and legally and constitutionally protected, is deemed offensive and provocative to settled social customs and practices. Plaintiffs Blackston and Barber are the potential victims of the oppressive laws under consideration by the committee and are the victims of the violation of constitutionally protected right of Freedom of Speech. Chairman Gosa s idea is that all discussion of child support issues must conform to his standards and precepts. Gosa attempted to regulated plaintiffs speech on public and political issues, simply because he did not like it.

It is clear that the cards are unfairly stacked against the Plaintiffs in Alabama s child support review process. The Supreme Court has been careful to insist that regulations of speech do not involve "viewpoint discrimination - in other words, that the regulation is "not ... affected by sympathy or hostility for the point of view being expressed by the communicator." Young v. American Mini Theatres, Inc., 427 U.S. 50, 67, 96 S.Ct. 2440, 2451, 49 L.Ed2d 310 (1976). Thompson v. City of Clio, 765 F.Supp. 1066, 1070 (M.D. Ala. 1991).

The Defendants objectives for the ban on petitioner's recording the secret meeting wherein Policy Studies, Inc., was chosen as the sole entity to update the Schedule, and subsequent withholding valuable information pertaining to copyrighted information, is motivated by a desire to maintain the oppression and persecution of fathers in Alabama's courts.

The Defendants simply cannot justify their abusive behavior and denial of Plaintiffs Blackston and Barber s first amendment rights. The present Defendants are continuing a practice that finds its origins in a similar 1993 Committee meeting of the same Committee wherein the past defendants denied Blackston and Barber s right to tape record any and all Committee functions.

The defendants in this case have not argued that their desire to avoid any misinformation or angry responses that Plaintiffs Blackston and Barber's tape recordings might engender, qualifies as a "compelling state interest." Indeed, such a purpose is not even a legitimate one, for the Supreme Court has frequently recognized that the disruptive or disturbing effects of expression are integrally bound up with the very political value of free speech that the first amendment was designed to safeguard and nurture. "Texas v. Johnson, 491 U.S. 397, 408-09, 109 S.Ct. 2533, 2541, 105 L.Ed.2d 342 (1989); Thompson v. City of Clio, 765 F.Supp. 1066, 1072 (M.D. Ala. 1991); ("a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.") quoting Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949)). See also Boos, 485 U.S. at 322, 108 S.Ct. at 1164; Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969)."

Nor, of course, do defendants' allegations argue that the tapes and information Plaintiffs Blackston and Barber wanted were somehow inaccurate or incomplete. It is well settled that the protection of the first amendment do not turn on the truth of an idea or belief. New York Times v. Sullivan, 376 U.S. 254, 271-72, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964); Mead Corp. v. Hicks, 448 So2d 308 (Ala. 1983) ("erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need ... to survive'") (citation omitted). Accord Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 2898-99, 97 L.Ed.2d 315 (1987). Thompson v. City of Clio, 765 F.Supp. 1066, 1072, n. 15 (M.D. Ala. 1991).

The Court in New York Times Co., Supra, based its conclusion on the premise that the first amendment's "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,". In order for debate on public issues to remain uninhibited, robust, and wide open, Defendant Blackston and Barber's right to make a tape recording of the committee meeting - a matter of public concern - was therefore, brought within the mantle of constitutional protection.

Reasonable officials in their position should have known at the time that individual citizens had First Amendment right to record session and that there was no compelling reason to deny him opportunity. Thompson v. City of Clio, 765 F.Supp. 1066, 1077 (M.D. Ala. 1991). Defendants were fully aware that their actions were in violation of Plaintiffs Blackston and Barber constitutional rights.

We need only to look to our own State Constitution to find that Freedom of Expression is an absolute right. Alabama's analogous constitutional provision, Article I, § 4, reads:

"That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty."

The only limitation contained therein is that, one may be held civilly responsible for the abuse of such liberty (i.e. slander, libel, etc.). The tape recording can be compared to the "written instrument" that the state constitution protects. The freedom of press guaranteed by the Alabama Constitution § 4, that embraces Freedom of Speech, includes the right to advocate change in the form of government by peaceful means, to expose incompetency and corruption on the part of the persons charged with administration of government, and the right to place before readers, in printed form, current happenings of the day. Barton v. City of Bessemer, 234 Ala. 20, 173 So. 626 (1937). Blackston and Barber's tape recording was the preliminary steps in securing the "current happenings" of the Alabama Supreme Court Advisory Committee on Child Support Guidelines and Updates, into printed form for distribution to their respective membership.

Therefore the Plaintiffs have stated a valid claim under the first amendment for deprivations of their right to make a record of the secret meeting that occurred on or about 8 January 2004. The Plaintiffs have stated a valid claim under the first amendment for deprivations of their right to information and a right to participate in the secret meeting on or about 8 January 2004..

IV. CLAIM IV - FOURTEENTH AMENDMENT - DUE PROCESS

The Defendants argue that the Plaintiffs equal protection and due process allegations are barred by absolute legislative immunity, citing Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S. Ct. 1967 (1980). However, the Defendants fail to consider the existence of a contractual relationship in the present case.

Pursuant to the 1995 Agreement and the 2003 Agreement the Plaintiffs are entitled to a property interest in the information the state uses to update the child support guidelines. The property in question includes all versions of the copyrighted, final report published by Policy Studies, Inc., on 25 February 2004 and all information on the 1,100 venders that the Defendants solicited for proposals to update the Schedule. The Plaintiffs are entitled to all information on the decision to chose Policy Studies, Inc., as the sole vender to update the Schedule. The Plaintiffs, as member and alternate member on the Committee, have a property interest in all books, papers, correspondence and electronic communications pertaining to the Committee.

Under the 1995 Agreement and the 2003 Agreement, the Defendants are well aware that Plaintiffs Blackston and Barber are entitled to all the information as described above and to deprive the Plaintiffs of any information pertaining to the Committee is a violation of the Agreements and a violation of the Plaintiffs' property interest in the books, papers, correspondence and electronic communications and etc. The Defendants are keenly aware of both agreements and should have known that denying the Plaintiffs the information would violate the Plaintiffs contractual rights. Common sense should have told the Defendants that the Plaintiffs could not perform their jobs as member and alternate member on the Committee without all the information necessary to make informed decisions about the guidelines review process.

The Plaintiffs have stated a valid first amendment right to record all Committee meetings and have information pertaining to the Committee. The record of Committee meetings and information is necessary to inform their constituents about the latest child support guidelines review process. The denial is egregious and capacious because it involves matters of public concern. Approximately 700,000 divorced and separated Alabama parents will have their income garnished and some will go to jail without being adequately represented on the Committee and having input into the child support guidelines.

No State shall "deprive any person of life, liberty, or property, without due process of law". U.S. CONST. amend. XIV, § 1. To state a § 1983 claim for violation of the Due Process Clause of the Fourteenth Amendment, a plaintiff must show that he has "asserted a recognized 'liberty or property' interest within the purview of the Fourteenth Amendment, and that [he was] intentionally or recklessly deprived of that interest, even temporarily, under color of state law". Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990) (citations omitted), cert. denied, 498 U.S. 1040, 112 L. Ed. 2d 701, 111 S. Ct. 712 (1991). At issue is the substantive component of the Due Process Clause; it "protects individual liberty against 'certain governmental actions regardless of the fairness of the procedures used to implement them'". Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 125, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992). See Rochin v. California , 342 U.S. 165, 172, 96 L. Ed. 183, 72 S. Ct. 205 (1952).

Almost all § 1983 claims rely on the substantive component of the Due Process Clause because it is through that vehicle that fundamental rights are incorporated against the states. McKinney, 20 F.3d at 1556. These fundamental rights include most of the rights protected by the Bill of Rights, and certain well-recognized, unenumerated rights. Id. McKinney did not disturb a litigant's ability to vindicate fundamental rights though the substantive component of the Due Process Clause. Id. at 1556 n. 8. . . "substantive due process rights are created only by the Constitution.'" Id. (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S. Ct. 507, 515, 88 L. Ed. 2d 523 (1985) (Powell, J., concurring)). Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1562 (11th Cir. 1995)

The Plaintiffs seek to vindicate a right arising from the First Amendment and the Fourteenth Amendment of the Constitution, not one which is created by the state. A state employee does not need a protectable property interest, or any other state-created right, in order to maintain a First Amendment retaliatory discharge claim. In Rankin v. McPherson, the Supreme Court explained that "even though [the plaintiff] was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if she was discharged for exercising her constitutional right to freedom of expression." 483 U.S. 378, 383-84, 107 S. Ct. 2891, 2896, 97 L. Ed. 2d 315 (1987). In Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, the Court held that "even though [plaintiff] could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms." 429 U.S. 274, 284, 97 S. Ct. 568, 574, 50 L. Ed. 2d 471 (1977) (citations omitted). In Perry v. Sindermann, the Court held that the plaintiff's lack of "a contractual or tenure right to re-employment" did not defeat his First Amendment claim. 408 U.S. at 597, 92 S. Ct. at 2697. Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1562-63 (11th Cir. 1995)

We hold that state employees retain a federal cause of action under the First Amendment when they allege that government employment decisions were taken in an attempt to chill expression protected by the First Amendment. Plaintiffs suit states a valid claim for relief. Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, (11th Cir. 1995) In addition to the first amendment and fourteenth amendment claims, the Plaintiffs have stated a valid property interest in the Committee and the accompanying books, papers, correspondence and electronic communications pertaining to the Committee and the Defendants are not entitled to immunity on the Plaintiffs' due process claim.

A. Equal Protection - Equal Access - Equal Treatment - Suspect Class

The Defendants argue that the Plaintiffs equal protection and due process allegations fail to state a valid claim. They do not allege any form of suspect class or fundamental right, and thus their federal equal protection and due process claims are subject only to rational basis scrutiny, citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254 (1985)..

City of Cleburne is non dispositive to this case. The Plaintiffs have sufficiently established a claim for violation of equal protection under Supreme Court precedent Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)(noting that successful equal protection claims can be brought where a plaintiff has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.)

To properly plead an equal protection claim, under Village the plaintiffs need only allege that through state action, similarly situated persons have been treated disparately and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Defendants State of Alabama, Houston, Helms, Jackson, Gosa and Maddox initiated the 2004 child support guideline s review without Blackston and Barber s knowledge or participation. The secret process to chose Policy Studies, Inc., as the sole vendor to update the child support schedule breeches the 1995 Agreement and the 2003 Agreements.

Defendants State of Alabama, Houston, Helms, Jackson, Gosa and Maddox took premature actions that violated Blackston and Barber s contractual rights without giving Blackston and Barber a chance to respond or object to Policy Studies, Inc. s exclusive contract in total disregard to the 2003 Agreement, ¶4(b) that clearly states comparable entities must be considered to provide an update of the child support schedule.

The Defendants argue that, It is Plaintiffs burden to negative every possible rational basis that would justify Defendants alleged actions, (Defendants brief, p13, ¶1.) Plaintiff Blackston sent a letter to all the Defendants and specifically Defendant Jackson, requesting a copy of all correspondence sent to the 1,100 vendors mentioned in the 20 February 2004 Memorandum. Plaintiff Blackston completely exhausted all available remedies without receiving the requested information. (See Exhibit A, herein attached)

The Defendants provided Policy Studies, Inc. s update proposal to the Schedule in Adobe® , PDF format to others concerned with child support collection and enforcement but denied Plaintiffs Blackston and Barber the same information. It is indisputable that no one is above the law and every citizen must follow copyright law or suffer the penalty. The Defendants cannot under any circumstances violate federal copyright law. (See Doc. #1, pp.38-40, ¶229-237)

The failure of Defendants State of Alabama, Houston, Helms, Jackson, Gosa and Maddox, acting under color of state law, to convene a Committee meeting within three (3) months, from 25 September 2003 and the failure to convene a proper public hearing within six (6) months from 25 September 2003 violates Plaintiffs Blackston and Barber s due process rights under the fourteenth amendment of the U.S. Constitution and the Alabama Constitution, 1901, §§6 & 13.

The Defendants were obligated by the 2003 Agreement, ¶4(b), to consider comparable entities to update the Schedule. (Doc. #1, p.5, ¶4(b). When asked to produce records on the comparable entities, the Defendants refused, therefore, the failure to solicit comparable entities and include Blackston and Barber in the vendor selection process to update the child support schedule and to provide records on the vendor selection process and the failure to properly open the Committee meetings to the public violates Plaintiffs Blackston and Barber s due process rights under the fourteenth amendment of the U.S. Constitution and the Alabama Constitution, 1901, §§6 & 13. (See Doc. #1, pp.11-14, ¶¶65-81

Under the fourteenth amendment and as member and alternate members on the Committee the Plaintiffs have equal rights to information and access to Committee functions as any other member of the Committee. Plaintiffs Blackston and Barber were intentionally treated differently from others similarly situated and Defendants State of Alabama, Houston, Helms, Jackson, Gosa and Maddox do NOT have a rational basis for the difference in treatment.

V. CLAIM V - ALABAMA S OPEN MEETINGS LAW

The court is initially guided by the 2003 Agreement, ¶4(c), which states, It is understood between the parties that the public may attend the meetings and submit written commentary to the Advisory Committee. . . .

The court is further guided by § 13A-14- 2(a) of the Code of Alabama, 1975, which provides that:

(a) No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama; namely: Alabama Public Service Commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except, that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.

If this Honorable Court were to hold that a State may forbid recording of public meetings because the Chairman made no provision to record it, but allowed it wherever the Chairman okays it - as where minutes of public meetings are recorded on a routine basis - this court would be saying that it is okay to record meetings only in one direction. This court would be permitting a State to "prescribe what shall be orthodox" by saying one may record public meetings only if the chairman of a committee provides for it. To do so would be entering into territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the recording of minutes of the Alabama public service commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function. Code of Alabama, 1975 § 13A-14-2.

Under state law all meetings of The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement must be open to the public. Evidence shows that numerous meetings were held in secret; how many is unknown at this point. The public meeting requirement is for the benefit of the public to ensure that it has the opportunity to become informed as to the affairs of its governmental bodies. It is intended that the whole deliberative process be open to public scrutiny, rather than that there be the mere formal announcement of decisions already made in private. Miglionico v. Birmingham News Co., 378 So2d 677 (Ala. 1979).

Under this statute all meetings of the bodies named, whether formal or informal, whether or not an official vote is taken, must be open to the public, except where the character or good name of a person is involved. The right to public access extends to the entire process from public policy discussion and formulation through adoption and enforcement. Otherwise, business could be conducted in secrecy and public meetings held only to ratify decisions already made in secret. Dale v. Birmingham News Co., 452 So2d 1321 (Ala. 1984).

The Code of Alabama, 1975 § 11-43-49, 52 is not inconsistent with this section, and both may be read in pari materia.

The council shall determine the rules of its own proceedings and keep a journal thereof, which shall be open to the inspection and examination of all citizens and shall have the force and effect of a record, and a copy thereof, certified by the clerk, shall be prima facie evidence in any court or elsewhere. Code of Alabama, 1975, § 11-43-52.

The clear language of the open meetings laws evidences the legislative policy of this state that all meetings are to be open to the public and that no executive sessions are to be held. Miglionico v. Birmingham News Co., 378 So2d 677 (Ala. 1979).

Chairman Gosa and the Defendants did not provide for a record of the secret meetings of the Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement that occurred on or about 8 January 2004. The committee violated the substantive rights of the Plaintiffs Blackston and Barber by failing to hold open meetings and provide for a record of all proceedings. Adding insult to injury the Defendants held secret closed meetings that prevented the Plaintiffs from making a record of the meeting. It is sufficient to conclude that the committee was enacting laws in secret that adversely affected citizens of Alabama's right to know the affairs of their government; a clear First Amendment violation.

Since Alabama provides that all meetings shall be open to the public and a record of the proceedings provided to the public; "Individuals enjoy the full range of first amendment protection while on public property that the state has opened for expressive activity. Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)." Thompson v. City of Clio, 765 F.Supp. 1066, 1070, n. 11 (M.D. Ala. 1991).

Plaintiffs Blackston and Barber suffered a denial of their first amendment rights to record the secret meeting. The Defendants actions confused Plaintiffs Blackston and Barber relating to their purpose and input into the committee. Plaintiffs Blackston and Barber were so unsure and confused of their position that they could not adequately present their evidence and were left feeling no confidence that the committee would consider their input under any circumstances. Plaintiffs Blackston and Barber lost a valuable opportunity to obtain a complete and reliable record of the secret meeting.

The way to preserve and protect The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong if they are wrong. "To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforce silence." Whitney v. California, 274 U.S. 357, 377 (1927), Texas v. Johnson, 491 U.S. at 419.

The committee took action that adversely affected substantive law that will govern the child support obligations of fathers and the enforcement thereof for the next four years. For these reasons and more, the court must conclude that the Defendants violated Blackston and Barber's first amendment right to record the secret committee meeting that occurred on or about 8 January 2004.

Undisputed facts are clear that the Defendants violated Alabama's open meeting laws and failed to provide a record of the committee's meetings as required by Alabama law. Because of the Defendants actions, Plaintiffs Blackston and Barber are unable to report to their respective support groups the proceedings of The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement that occurred in the secret meeting on or about 8 January 2004. The Alabama citizens right to know the manner in which government is operated and all such matters relating to the child support review process is breached. Cf. Mills v. Alabama, 384 U.S. 214, 218-19 (1966): Brown v. Hartlage, 456 U.S. 45, 53 (1982).

The frustrations felt by Plaintiffs Blackston and Barber were directly and intentionally, under color of state law, caused by the Defendants. Plaintiffs Blackston and Barber's denial to record the secret meeting on 8 January 2004 totally eliminated Blackston and Barber s input into the committee's course of action and functions and in addition to violating the Plaintiffs first amendment and fourteenth amendment rights also violates the 2003 Agreement, ¶4(c). (footnote 5 )

VI. CLAIM VI - ALABAMA S OPEN RECORD S LAW

As members of The Alabama Supreme Court s Advisory Committee on Child Support Guidelines Updates and Enforcement, the Plaintiffs sought to disclose the contents of records and/or correspondence pertaining to Alabama s latest child support guideline s review pursuant to Code of Alabama, 1975, § 36-12-40 also known as the Open Records Act. This section states that "every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute."

Alabama courts note that "there is a presumption in favor of public disclosure of public writings and records expressed in the language of § 36-12-40." Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala. 1989). Munger v. State Bd. for Registration of Architects, 607 So2d 280, (Ala. Civ. App 1992)

The Defendants refused to provide the Plaintiffs with information on how Policy Studies, Inc., was chosen as the sole vendor to update Alabama s Schedule of Basic Child Support Obligations. The Defendants do not have an excuse for their failure to comply with Plaintiffs request.

This Honorable Court has jurisdiction of Claim VI under its Supplement Jurisdiction. Under 28 U.S.C. § 1367(a), unless section 1367(b) or (c) applies, the district court " shall have " supplemental jurisdiction over both additional claims and additional parties when those claims "are so related to claims in the action within [the] original jurisdiction [of the court] that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a).

VII. CLAIM VII - CONSTITUTIONAL CHALLENGE TO GUIDELINES

Defendants argue the Plaintiffs challenge to Alabama s child support guidelines is barred under the doctrine of res judicata. Defendants agrue Plaintiffs challenge to Alabama s Child Support Guidelines is also subject to dismissal under Rule 12(b)(6) because membership in the Advisory Committee does not give Plaintiffs any rights that may be sued upon. Defendants also argue that the Plaintiffs claims are also barred by absolute legislative immunity.

Moreover, to the extent that this argument attempts to undercut the validity of any current or future revision of the Guidelines, it is also not ripe. See Nat l Park Hospitality Ass n, 538 U.S. at 807 08, 123 S. Ct. at 2030. Defendants argue the Plaintiffs lack standing to sue.

A. Res Judicata

In the Eleventh Circuit, whether a prior judgment has a preclusive effect on a new suit is determined by the following rule: Res judicata will bar a subsequent action if: (1) the prior decision was rendered by a court of competent jurisdiction; (2) there was a final judgment on the merits; (3) the parties were identical in both suits; and (4) the prior and present causes of action are the same. Jang v. United Techs. Corp., 206 F.3d 1147, 1148 (11th Cir. 2000)

The Plaintiffs did not have standing to challenge Alabama s child support guidelines on unconstitutionally grounds until 12 March 2004. Plaintiff Barber was not an alternate member on the Committee until the 2003 Agreement and even though Blackston was a Committee member, both plaintiffs were criminally denied all access to the Committee from its inception in 1987 until the present. The Committee meeting on 12 March 2004 was the first meeting that the Plaintiffs could have discovered that Alabama s child support guidelines are unconstitutional.

Plaintiffs allegations that challenge Alabama s Child Support Guidelines on constitutional grounds were discovered on 12 March 2004, during a Committee meeting, wherein an expert witness specializing in the economics of child support guidelines, gave extensive testimony that Alabama s Child Support Guidelines, as written, are unconstitutional for several reasons. Those reasons are well documented in Plaintiffs Verified Complaint, Claim VII. (See Verified Complaint, Doc. #1, pp.54-69)

The Defendants argument on res judicata fails because on 11 May 2004, one month after Plaintiffs filed the present suit, one of the defendants, i.e. Defendant Maddox, filed a MOTION FOR SANCTIONS AGAINST THE PLAINTIFFS FOR VIOLATION OF THE 2003 SETTLEMENT AGREEMENT AND RELEASE. (See Case # 2:99cv295-A, Doc. #213) On 24 May 2004, the Court refused to take jurisdiction of Defendant Maddox s MOTION FOR SANCTIONS. (See Case # 2:99cv295-A, Doc. #216)

The Plaintiffs Verified Complaint contains several NEW causes of action that accrued after the 2003 Agreement became effective. This Honorable Court already recognizes this fact. On 24 May 2004, the Court refused to take jurisdiction of Defendant Maddox s MOTION FOR SANCTIONS filed under the previous case number and stated, Upon review of the Complaint filed in James Blackston et al. v. State of Alabama, et al., 2:04cv348-T, and the Plaintiffs response to the Motions for Sanctions, it appears to the court that the Plaintiffs have premised their claims in that case at least in part on actions taken subsequent to the settlement agreement entered into in the above styled matter. The extent to which new issues have been raised in the newly-filed case is a matter to be determined by the judge before whom that case is pending. (See Case # 2:99cv295-A, Doc. #216, ORDER, p.1, ¶2) Res judicata does not apply because the present case is entirely different, based on different facts and dates and parties as the prior case.

The prior suit in question does not have the same operative nucleus of fact. The Eleventh Circuit previously stated in Olmstead, the factual premise of the present lawsuit differs significantly from the prior one. Consequently, we cannot agree that the legal claims in the two suits arise from the same "operative nucleus of fact." See Olmstead v. Amoco Oil Co., 725 F.2d 627, 632 (11th Cir. 1984); RESTATEMENT (SECOND) OF JUDGMENTS § 24 cmt. f (1980) ("Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first."); see also Lawlor v. National Screen Service Corp., 349 U.S. 322, 327-28, 99 L. Ed. 1122, 75 S. Ct. 865 (1955) (prior dismissal of antitrust complaint did not bar new antitrust complaint based on conduct occurring after the first judgment); Wu v. Thomas, 863 F.2d 1543, 1548-49 (11th Cir. 1989) (prior discrimination action did not bar current action for retaliation).

The present action to enforce the 1995 Agreement and the 2003 Agreement is a new set of facts which presents a new case to be decided by the district court. Whether the present defendants violated the 2003 Agreement as stated in the Verified Complaint is a different question than was presented to the Court in 2:99cv295-A. Accordingly, we hold Plaintiffs Blackston and Barber s Verified Complaint is not barred by res judicata. See cf. Southeast Florida Cable, Inc. v. Martin County, 173 F.3d 1332, 1336 (11th Cir. 1999)

In Manning, the Eleventh Circuit considered a situation in which a plaintiff elected not to participate in an employment discrimination class-action but brought a second suit alleging employment discrimination against the same defendant. The operative facts that gave rise to the plaintiff's claims for discrimination had not occurred when the class filed its claim but some of those facts occurred before the district court dismissed the plaintiff from the class action. The Manning plaintiff, therefore, had an opportunity to preserve her claims in the class action by filing a supplemental pleading or by participating in discovery in that case. See id. at 1359. We, however, observed that Federal Rule of Civil Procedure 15(d), which governs supplemental pleadings, makes such a pleading optional and held that the doctrine of res judicata does not punish a plaintiff for exercising the option not to supplement the pleadings with an after-acquired claim. Id. at 1360. We explained that the parties frame the scope of litigation at the time the complaint is filed and that a judgment is only conclusive regarding the matters that the parties might have litigated at that time but not regarding "new rights acquired, pending the action which might have been, but which were not required to be litigated." Id. (quoting Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir.1984)) (internal quotations omitted). We then explained that:

We do not believe that the res judicata preclusion of claims that "could have been brought" in earlier litigation includes claims which arise after the original pleading is filed in the earlier litigation. Instead, we believe that, for res judicata purposes, claims that "could have been brought" are claims in existence at the time the original complaint is filed or claims actually asserted by supplemental pleadings or otherwise in the earlier action.

Id. (second emphasis added) (footnote omitted); see also Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 374 n. 2 (5th Cir.1980) (arriving at a similar conclusion). Pleming v. Universal-Rundle Corp. 142 F.3d 1354, 1357 (11th Cir. 1998)

B. Absolute Legislative Immunity

Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S. Ct. 1967 (1980), is distinguishable from this case, which involves a federal court order entered to implement a federal law. Enforcing the Settlement Agreements vindicates an agreement that the state officials reached to comply with federal law. Federal courts are not reduced to approving Settlement Agreements and hoping for compliance. Once entered, that Settlement Agreement may be enforced. (Emphasis added) See Hutto v. Finney, 437 U.S. 678, Pp 4-9. Frew v. Hawkins, 540 U.S. ___, January 14, 2004 (Slip Opinion) No.02-628, p6, ¶3 - p9, ¶1.

Additionally, suing individuals in their official capacities is "another way of pleading an action against an entity of which an officer is an agent." Graham, 473 U.S. at 165, 105 S. Ct. at 3105. A state, a state agency, and a state official sued in his official capacity are not "persons" within the meaning of § 1983, thus damages are unavailable; but a state official sued in his official capacity is a person for purposes of § 1983 when prospective relief, including injunctive relief, is sought. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, n. 10, 109 S. Ct. 2304, 2312, n. 10, 105 L. Ed. 2d 45 (1989). Edwards v. Wallace Community College 49 F.3d 1517, (11th Cir. 1995).

In Claim VII, the Plaintiffs seek injunctive relief for the constitutional challenge to Alabama s child support guidelines. Plaintiffs seek injunctive relief to end a continuing violation of 42 U.S.C. §667 and 45 C.F.R. §302.56. Plaintiffs seek injunctive relief to end a continuing violation of Plaintiffs contract rights under the 1995 Agreement and the 2003 Agreement to further the interest of federal law. The Plaintiffs seek injunctive relief to end violations of the the Plaintiffs first and fourteenth amendment rights.

C. Defendants Argue Plaintiffs have No Rights to Sue as Members of Committee

Again the Defendants argument is non-dispositive. The Plaintiffs sue in their individual capacity and in their capacity as Members of the Committee entitled to equal treatment, equal access, due process and equal protection of the laws.

The federal rules state that, "The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile." Fed. R. Civ. Proc., Rule 17(b)

Alabama law states that, "Every action shall be prosecuted in the name of the real party in interest. . . . . A party with whom or in whose name a contract has been made for the benefit of another . . . . " Ala. R. Civ. Proc., Rule 17(a)

Under Alabama contract law, the Plaintiffs have an absolute right to enforce the provisions of the 1995 and 2003 Agreements and respectfully requests this Honorable Court to hold the Defendants in contempt for violations of the ORDER AND FINAL JUDGMENT, dated 24 December 2003.

The 2003 Agreement specifically requires the Defendants to follow all state laws pertaining to child support guidelines reviews. (Doc. #1, p.6, ¶6) Federal regulations, 45 C.F.R. §302.56 make specific demands on states to qualify for federal TANF funds that the State of Alabama and the Defendants failed to follow. The Defendants agreed to initiate a child support guideline review within the time specified in the 2003 Agreement, 4(a). The Plaintiffs constitutional challenge to Alabama s Child Support Guidelines is premised on contract law, federal regulations and constitutional law. The Plaintiffs have a right to enforce the 2003 Agreement.

The Plaintiffs also have an absolute right to sue under 42 U.S.C. §1983 when any person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The Plaintiffs, as members of the Committee, serve according to the dictates of federal law. Alabama and the Defendants are bound by federal law and receive federal Title IV-D, TANF funds to operate the Committee. The Plaintiffs, as a member and an alternate member, have a property interest in ensuring that Alabama s child support guidelines conform to the federal guidelines for child support reviews enumerated in 42 U.S.C. §667 and 45 U.S.C. §302.56.

Enforcing the Settlement Agreements vindicates an agreement that the state officials reached to comply with federal law. Federal courts are not reduced to approving Settlement Agreements and hoping for compliance. Once entered, that Settlement Agreement may be enforced. (Emphasis added) See Hutto v. Finney, 437 U.S. 678, Pp 4-9. Frew v. Hawkins, 540 U.S. ___, January 14, 2004 (Slip Opinion) No.02-628, p6, ¶3 - p9, ¶1.

D. Claim VII is not ripe

Defendants argue that Claim VII is not ripe for adjudication.

"Whether such a controversy exists is determined on a case-by-case basis." Caulkins Indiantown Citrus, 931 F.2d at 747; see also BP Chemicals v. Union Carbide Corp., 4 F.3d 975, 977-78 (Fed. Cir. 1993) (stating that difference between "definite and concrete" dispute and case not ripe for litigation is one of degree, determined by totality of circumstances). The controversy must be more than conjectural; the case must "touch[] the legal relations of parties having adverse legal interests." Caulkins Indiantown Citrus, 931 F.2d at 747 (quoting Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967)); see also Halder v. Standard Oil Co., 642 F.2d 107, 110 (5th Cir. Unit B 1981) (stating that district courts lack jurisdiction to express legal opinions based on hypothetical or academic facts). Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co. 68 F.3d 409, 414 (11th Cir. 1995)

For a controversy to exist, "the facts alleged, under all the circumstances, [must] show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co., 312 U.S. at 373, 61 S. Ct. at 512 (citation omitted). The party who invokes a federal court's authority must show, at an "irreducible minimum," that at the time the complaint was filed, he has suffered some actual or threatened injury resulting from the defendant's conduct, that the injury fairly can be traced to the challenged action, and that the injury is likely to be redressed by favorable court disposition. Caulkins Indiantown Citrus, 931 F.2d at 747 (citing Valley Forge College v. Americans United, 454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982)). Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co. 68 F.3d 409, 414 (11th Cir. 1995)

The state s plan for child support enforcement, entitling the state to receive federal funds, requires the state to follow federal guidelines in 42 U.S.C. §667 and 45 C.F.R. §302.56, in establishing and reviewing the state child support guidelines.

The Plaintiffs challenge to Alabama s Child Support Guidelines stems from expert testimony in the 12 March 2004 public hearing wherein the expert articulated that Alabama s guidelines are based upon Policy Studies, Inc. s studies that violate constitutional principles and are not grounded in federal law and violate several federal guidelines to state child support guidelines reviews enumerated in 42 U.S.C. §667 and 45 C.F.R. §302.56.

Policy Studies, Inc., has been the sole entity to update Alabama s Schedule of Basic Child Support Obligation s Tables since Alabama established its child support guidelines in 1987. The Plaintiffs have been criminally denied all information and participation in reviewing Alabama s child support guidelines from the very start. Three federal lawsuits and two settlement agreements prove the Plaintiffs could not know before 12 March 2004 that Alabama s Child Support Guidelines are unconstitutional.

The State contracted with Policy Studies, Inc., to update the Schedule of Basic Child Support Obligations Table on or about 8 January 2004. The meetings and all negotiations for the contract with Policy Studies, Inc., were held in closed door meetings, far removed from the Plaintiffs and from public scrutiny. Policy Studies, Inc., published its final report on 25 February 2004. (Complaint, ¶227)

After eleven (11) years of being deprived of knowledge and participation on the Advisory Committee as set forth in the Verified Complaint, the Plaintiffs finally were able to attend a court ordered meeting of the Advisory Committee on 12 March 2004. The Plaintiffs were unaware that the Alabama child support guidelines violated constitutional and federal law until 12 March 2004. The expert s testimony in the public hearing on 12 March 2004 prompted the Plaintiffs to make the constitutional challenge of Alabama s child support guidelines.

Court intervention will redress the Plaintiffs injury. According to expert testimony, Alabama s Child Support Guidelines can be made constitutionally sound by hiring true economics experts to review the guidelines without completely dissolving the guidelines. Qualified organizations to solicit true economics experts are the National Association of Forensic Economics and the National Association for Business Economics. (See Doc. #1, p.54, n.6)

Defendants argue that declaring Alabama s child support guidelines unconstitutional will require the state to make another guideline to qualify for federal TANF funds. This argument is displaced because reviewing the guidelines, even to the complete rewriting of the guidelines, is the exact function that the Committee preforms. Completely rewriting the guidelines would not affect the receipt of TANF funds. 42 U.S.C. §667 and 45 C.F.R. §302.56, the federal requirements for child support guidelines reviews, are completely silent on the prospect of states rewriting child support guidelines and the Defendants can point to no law or statute or regulations that make such a prohibition on the states.

Because the State chose Policy Studies, Inc., as the sole vendor to update the Schedule in a closed door proceeding and refused to provide the Plaintiffs with equal access to correspondence and information about Policy Studies, Inc. s final report, the Plaintiffs could not know that Alabama s child support guidelines are unconstitutional. The Plaintiffs contend the State violated the Plaintiffs contractual rights under the 1995 Agreement and the 2003 Agreement and first amendment and fourteenth amendment rights and violated Alabama s open meeting and record s laws.

The Schedule is an integral part of Alabama s child support guidelines of which the Plaintiffs claim is the heart and soul of any state child support guidelines. The 2003 Agreement required Defendants to operate the Advisory Committee in a good faith manner to include Blackston and Barber in the entire deliberative process. Only after the official public meeting and the testimony from expert witnesses did the Plaintiffs know that Alabama s child support guidelines were unconstitutional.

Judicial intervention is necessary to prevent a manifest injustice to approximately 700,000 Alabama citizens that pay child support. The Plaintiffs limit their request only for injunctive relief to insure Alabama s child support guideline s review process conforms to federal regulations in 42 U.S.C. §667 and 45 C.F.R. §302.56 and to insure federal interests are promoted under the 1995 Agreement and the 2003 Agreement. The federal government s interests in Alabama s child support guidelines are to ensure (1) a uniform child support award occurs for America s children; (2) the uniform child support award is fair and reasonable for each given circumstance; (3) the parents are not unduly penalized in complying with child support guidelines; (4) states comply with all constitutional principles in establishing and reviewing child support guidelines; (5) America s children receive support from both parents according to their respective ability to pay; (6) Interstate child support awards are consistent with all the above and (7) all American s children received the child support they deserve;(8) and to ensure a continued decrease in TANF welfare funds through increased child support enforcement, especially in interstate cases.

As member and alternate member on the Committee, the Plaintiffs have a property interest in insuring Alabama s child support guidelines review process conforms to federal regulations and to ensure Alabama remains qualified to receive federal TANF funds. Additionally, in the event Alabama loses federal TANF funds, state officials would raise taxes to compensate for the loss in federal funds. The trickle down effect of losing federal funds would be enormous. (See Section H, Financial Penalties for Failure to Comply with TANF Funding Requirements.)

The Plaintiffs suffered actual injury resulting from the defendants conduct, the injury fairly can be traced to the challenged action and the injury will be addressed by favorable court injunctive relief. Caulkins Indiantown Citrus, 931 F.2d at 747 (citing Valley Forge College v. Americans United, 454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982)). Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co. 68 F.3d 409, 414 (11th Cir. 1995)

E. Plaintiffs Standing to Challenge Alabama s Child Support Guidelines

The Defendants argue that the Plaintiffs Lack Standing To Challenge The Child Support Guidelines Because They Do Not Pay Child Support And Cannot Sue On Behalf Of Any Third Parties That Do Pay Child Support. Standing to bring suit in federal court requires that the plaintiff meet three criteria: (1) Plaintiff must have suffered an invasion of rights that is concrete and particularized and actual or imminent. (2) The injury must be fairly traceable to the conduct of the defendant. (3) The remedy that the Court could provide would likely redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 61, 112 S. Ct. 2130, 2136 (1992).

Again the Defendants incorrectly characterize the Plaintiffs Verified Complaint. The Defendants cannot point to a single reference in the Plaintiffs Verified Complaint that complains about the Plaintiffs paying child support. Neither can the Defendants point to any reference in the Verified Complaint that Plaintiffs Blackston and Barber are representing a third party.

The Defendants argue that Plaintiffs Blackston and Barber are powerless to represent Alabama citizens in child support matters. Both the 1995 Agreement (Doc. #1, Exhibit A, p.5, ¶6) and the 2003 Agreement (Doc. #1, Exhibit B, p.4, ¶3(b)) explicitly states that Blackston will be appointed to the Committee as the representative of the National Congress for Fathers and Children on the Alabama Supreme Court s Advisory Committee on Child Support Guidelines Updates and Enforcement. The 2003 Agreement further states that Plaintiff Barber shall serve as Blackston s alternate.

Contrary to the Defendants incorrect characterization of the Plaintiffs Verified Complaint, Claim VII, the Plaintiffs claims do not address any claim or controversy concerning the payment of child support. The Plaintiffs challenge to Alabama s child support guidelines in their well-pleaded complaint is limited to the child support guideline formulation and review process, wherein the guidelines are reviewed every four (4) years pursuant to 45 C.F.R. §302.56. (See Verified Complaint, Doc. #1, pp.54-69)

Plaintiffs standing is derived from being members of the Committee and as such the Plaintiffs have an absolute right to represent all Alabama citizens in the capacity of reviewing Alabama s child support guidelines. Plaintiffs Blackston and Barber s challenge to the constitutionality of Alabama s guidelines is solely premised upon Committee membership an the associated rights to information and participation on the Committee and ensuring Alabama s child support guidelines comply with all federal laws and regulations. Plaintiffs have a duty and a solemn obligation to represent their constituents interest in the child support review process.

Plaintiffs Blackston and Barber s challenge to Alabama s child support guidelines is that the review process is unconstitutional and results in unconstitutional guidelines. Plaintiffs Blackston and Barber have contractual rights and a due process and equal protection right to assist state authorities in reviewing Alabama s child support guidelines to insure the guidelines meet constitutional muster. In the process of reviewing Alabama s child support guidelines the Plaintiffs learned about the unconstitutional procedures used to update the guidelines on 12 March 2004. Testimony given by an economics expert, specializing in child support guidelines, in the Committee meeting on 12 March 2004, shows that Alabama s Child Support Guidelines are unconstitutional and gave several reasons. (See Doc. #1, pp.29-30, ¶178)

Alabama s Child Support Guidelines contain irrebuttable presumptions in violation of due process and federal child support guideline s law set forth in 42 USC §667 and 45 CFR §302.56. Alabama must consider economic data on the cost of raising children and analyze case data, gathered through sampling or other methods, on the application of, and deviations from the guidelines. Alabama, in establishing and updating Alabama s child support guidelines, did not analyze case data, gathered through sampling or other methods, on the application of, and deviations from the guidelines. The analysis of the data must be used in the State's review of the guidelines to ensure that deviations from the guidelines are limited. The State of Alabama s failure to analyze case data deprives the Committee of available case data and prevents the Committee from reviewing Alabama s child support guidelines according to federal child support guideline s review standards and creates irrebuttable presumptions within Alabama s child support guidelines. Child support guidelines based on irrebuttable presumptions and fraudulent review procedures and non-existent data, violate due process requirements of the fourteenth amendment. (See Doc. #1, pp.54-55, ¶¶337-343)

The Plaintiffs standing to bring suit in federal court requires that the plaintiff meet three criteria: (1) Plaintiff must have suffered an invasion of rights that is concrete and particularized and actual or imminent. (2) The injury must be fairly traceable to the conduct of the defendant. ( (3) The remedy that the Court could provide would likely redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 61, 112 S. Ct. 2130, 2136 (1992).

The herein named Defendants violated the Plaintiffs rights under the 2003 Agreement and numerous federal laws and constitutional principles and court intervention will adequately redress the violation. The Court intervention will not absolve Alabama s child support guidelines. The Court s intervention will insure that federal interests are protected and Alabama s child support guidelines will comply with the first and fourteenth amendment guarantees and the child support review process will comply with federal laws and regulations enumerated in 42 U.S.C. §667 and 45 C.F.R. §302.56.

F. Plaintiffs Standing Because Constitutional Challenge Fails On Causation Grounds

Again the Defendants incorrectly characterize the Plaintiffs Complaint, citing Lujan, 504 U.S. at 560 and Sullivan. In Childrens & Parents Rights Association of Ohio, Inc. v. Sullivan, the court recognized that a judgment entered against plaintiffs because of child support obligations arguably established an injury in fact. 787 F. Supp. 724, 730 (N.D. Ohio 1991). Sullivan involved a state law challenge to Ohio s child support guidelines unlike the Plaintiffs first and fourteenth amendment, constitutional challenge that is based on two (2) settlement agreements entered to protect federal interest.

The Defendants argument relies incorrectly on Plaintiff Barber challenging some imaginary state court judgement. The Defendants argue Any attempt by Barber to challenge the Guidelines based upon his outstanding debt for back child support is also barred by the Rooker-Feldman doctrine.

Federal interests are at stake in the present litigation. The present case is not predicated upon a state court judgement. Federal courts are not reduced to approving Settlement Agreements and hoping for compliance. Once entered, that Settlement Agreement may be enforced. See Hutto v. Finney, 437 U.S. 678, Pp 4-9. Frew v. Hawkins, 540 U.S. ___, January 14, 2004 (Slip Opinion) No.02-628, p.6, ¶3 - p.9, ¶1.

The 1995 Agreement requires the State of Alabama to make a good faith effort to review Alabama s Child Support Guidelines every four (4) years, by following the federal laws, rules and guidelines for the child support guideline s reviews. (See Doc. #1, Exhibit A, p.6, ¶10). The good faith effort to review Alabama s child support guidelines would include Blackston and Barber in the entire review from deciding vendors to update the child support schedule, which is an integral part of Alabama s child support guidelines, to holding public meetings and including Blackston and Barber in all final decisions, concerning Alabama s child support guideline s review. (Doc. #1, p.4, ¶18-19)

As member and alternate member on the Committee, the Plaintiffs have an absolute right and obligation to represent the interest of Alabama citizens and zealously advocate for them to ensure the child support guidelines review process conforms to 42 U.S.C. §667 and 45 C.F.R. §302.56. The Committee s actions directly effect Alabama s eligibility for federal TANF funds, therefore Plaintiffs Blackston and Barber have a solemn duty to ensure the child support Guidelines meet constitutional muster and federal child support guidelines review regulations.

G. Rooker-Feldman Doctrine - Barber s state law obligations

Rooker-Feldman doctrine is non-dispositive in this case. Rooker-Feldman provides that federal courts, other than the United States Supreme Court, do not have jurisdiction to review the final judgments of state courts. Amos v. Glynn County Bd. of Tax Assessors, 347 F.3d 1249, 1266 n.11 (11th Cir. 2003). The Plaintiffs are NOT in any way challenging a state court judgment related to paying child support. Even a cursory reading of the Plaintiffs Verified Complaint would apprise the reader that a state court judgment is not at issue in the present case. The inclusion of Rooker-Feldman Doctrine arguments in the Defendants brief is frivolous or an intentional effort to divert the court away from acknowledging the 1995 Agreement and the 2003 Agreement wherein a federally protected interest in Title IV-D TANF funds are at stake.

Counsel for Defendants incorrect characterization of Plaintiffs challenge to Alabama s child support guidelines is a deliberate attempt to label the Plaintiffs as deadbeats that owe child support according to some imaginary state court judgement. Counsel s incorrect characterization is a Rule 11 violation of the federal rules, for deliberately misstating the Plaintiffs claims in a way that brings reproach upon the Plaintiffs.

Also, the Defendants deliberately failed to apprise the Court of Defendant Maddox s MOTION FOR SANCTIONS wherein the Court already evaluated the Plaintiffs case and determined, Upon review of the Complaint filed in James Blackston et al, v. State of Alabama, et al., 2:04cv348-T, and the Plaintiffs response to the Motions for Sanctions, it appears to the court that the Plaintiffs have premised their claims in that case at least in part on actions taken subsequent to the settlement agreement entered into in the above styled matter. The extent to which new issues have been raised in the newly-filed case is a matter to be determined by the judge before whom that case is pending. . . . (Case #2:99cv295-A, Doc. #216 p.1, ¶2)

H. Financial Penalties for Failure to Comply with TANF Funding Requirements

The State of Alabama can loose federal funds for a deliberate refusal to comply with federal child support requirements in 45 C.F.R. §302.56. In Hodges v. Thompson, 311 F.3d 316 (4th Cir. 2002), cert denied 72 Law Week 3230 (October 7, 2003) South Carolina challenged the HHS threat to cut off TANF and child support program funds for the state s failure to meet the automation requirements of Title IV-D or to have a State Disbursement Unit (SDU). The District Court upheld the law and the 4th Circuit affirmed. Automation requirements and State Disbursement Units are part of the state s plan for child support enforcement, funded by TANF funds.

Likewise, in Kansas v. United States, 2000 U.S. App. LEXIS 12021 (No. 98-3341, U.S. Ct. App. 10th Cir. June 1, 2000) affirming 24 F. Supp.2d 1192 (D. Kan. 1998,) Kansas brought an action for declaratory and injunctive relief in response to PRWORA's (Personal Responsibility and Work Opportunity Reconciliation Act of 1996) child support enforcement provisions. The Court of Appeals affirmed the lower court ruling finding that these provisions do not exceed Congress' authority under the Spending Clause (Article 1, Section 8 of the U.S. Constitution) or the Tenth Amendment.

Kansas argues that the IV-D requirements were "too onerous and expensive, necessitate too much manpower, and encroach upon its ability to determine its own laws. Because of the money at stake, Kansas contends it is being coerced into implementing the program requirements." The Court of Appeals analyzes the case in terms of South Dakota v. Dole, 483 U.S. 203 (1987). Dole delineates the requirements for Congress to exercise its power under the Spending Clause. Noting that the non-payment of child support, particularly in interstate cases, is a "widespread problem which has significant, deleterious effects on children, particularly those in low-income families," the court dismisses out-of-hand the argument that Congressional action in enacting PRWORA was not in pursuit of "the general welfare." The second requirement of Dole is similarly dispensed with. PRWORA is unambiguous that the IV-D provisions are attached to receipt of TANF and IV-D funds.

Third, the IV-D program is clearly related to the TANF program. Thus, there exists a close "correlation between the funding condition and the Federal interest." The fourth requirement of Dole is that there be no independent constitutional bar. Congress cannot use its powers to require States to engage in unconstitutional activity. (Emphasis added)

Finally, Kansas asserts that the financial carrot offered by PRWORA is simply so large in this case ($130 million in combined TANF and IV-D funds) that the inducement becomes coercion. Noting that the U.S. Supreme Court has never employed the theory of coercion to invalidate a funding condition, the Court of Appeals declines to "expand the concept of 'coercion' as it applies to relations between the State and Federal governments, and find a large Federal grant accompanied by a set of conditional requirements to be coercive because of the powerful incentive it creates for the States to accept it."

"Put more simply, Kansas' options have been increased, not constrained, by the offer of more Federal dollars. The requirements contained in IV-D represent a reasoned attempt by Congress to ensure that its grant money is used to further the State and Federal interest in assisting needy families, in part through improved child support enforcement. This is a valid exercise of Congress' spending power, and the requirements do not render PRWORA unconstitutional."

VIII. CONCLUSION

In an effort to bring some predictability and uniformity to child support awards, the federal government mandated the use of economically based numeric guidelines as a requirement for a state s continued receipt of federal funds under Title IV-D of the Social Security Act. 45 C.F.R. § 302.56(h) (1999) states in pertinent part, "a State must consider economic data on the cost of raising children . . ." No such study on the costs of raising children in Alabama has been done. Furthermore, the complete failure of the State to gather the objective economic data required to support the Guidelines amounts, and the continued use of the Guidelines in the absence of such data, render the adoption and application of the Guidelines an arbitrary, bad faith exercise of governmental power.

In 1987, Alabama rushed to put a law on the books primarily to obtain $25,000,000 in federal funds and, only coincidentally, to provide less variation in child support awards. The vehicle they chose, the Guidelines, is seriously flawed, both economically and constitutionally, and Alabama parents and their children suffer harm every time a payment is made. Without commenting on the motives of those who have left such a vehicle in place for seventeen (17) years, or pondering what representations have been made to the federal government over that time to continue the funding in the absence of the mandatory studies, it is sufficient to say that it is long overdue and time for the Guidelines to be fixed.

Alabama s child support guidelines impose an arbitrary and unequal burden on one of the two most important people in the life of every child in Alabama. This heavy handed and insensitive disparity creates rancor and ill-feeling between parents that will inevitably trickle down to the innocent child. The Guidelines also prolong domestic litigation by making custody of the children and the resulting support award an unjustifiably high-stakes affair. It is time for Alabama to adopt equitable and economically sound guidelines that consider the actual costs of raising children and the ability of both parents to meet those costs.

It is past time for Alabama to apply the federally mandated guidelines for establishing and reviewing child support guidelines. The Plaintiffs challenge to Alabama s child support guidelines seeks injunctive relief to effectuate the orderly and efficient transfer from the unreasonable to fair and just and equitable child support guidelines. The present is the first chance in eleven years of litigation and possibly the last chance for Alabama to get it right and protect our most valuable resource - our children.

IX. RELIEF REQUESTED

A. Motion to Show Cause

Plaintiffs seek an order to show cause, from the court that entered the ORDER AND FINAL JUDGMENT, dated 24 December 2003 and that retained jurisdiction over it, why the defendants should not be held in civil and criminal contempt for violations of the ORDER AND FINAL JUDGMENT.

B. Official Capacity

Plaintiffs seek injunctive relief for violations of the Plaintiffs first amendment and fourteenth amendment s rights. Plaintiffs seek injunctive relief for the constitutional challenge to Alabama s child support guidelines, Claim VII. Plaintiffs seek injunctive relief to end a continuing violation of 42 U.S.C. §667 and 45 C.F.R. §302.56. Plaintiffs seek injunctive relief to end a continuing violation of Plaintiffs contract rights under the 1995 Agreement and the 2003 Agreement to further the interest of federal law.

C. Individual Capacity

Plaintiffs seek compensatory relief for violations of their first and fourteenth amendment rights and for violations of the 1995 Agreement and 2003 Agreement.

X. MOTION TO STAY DISCOVERY

The 1999 Defendants in Case #2:99cv295-A, frivolously demanded several stays on discovery and unfairly delayed the case for nearly five (5) years. In the end, the Court ruled that the Defendants did NOT have immunity on Plaintiffs contract claims or immunity on any other of the Plaintiffs claims. All discovery stays were futile and were extremely unfair to the Plaintiffs and only served to delay the proceedings. The present case involves similar contract and constitutional claims and therefore discovery should proceed to prevent a manifest injustice and unnecessary delays in the proceedings.

Wherefore premises considered, the Plaintiffs respectfully request this Honorable Court as follows:

1) deny the Defendants MOTION TO DISMISS and;

2) deny the Defendants MOTION TO STAY DISCOVERY and

3) grant the Defendants MOTION TO SUBSTITUTE and;

4) grant the Plaintiffs an opportunity to amend their VERIFIED COMPLAINT and;

5) grant to the Plaintiffs any other, further and different relief to which they may be entitled and for general relief.

Respectfully submitted on,

DATED this, the 10th day of July 2004.

______________________________

James R. Blackston

______________________________

Bradley W. Barber